1842.

ATTORNEY

JERSEY

and others

v.

CAPELAIN.

on the 20th of December 1839, made an order that the Viscount should take measures for having the Hall GENERAL OF warmed in a proper manner at the charge of the receipt of Her Majesty's Revenue. In pursuance of this order, Mr. Philip Le Gallais, the Deputy-Viscount, engaged the Respondent to put up a stove and other apparatus in the Court House, for the purpose of warming it with hot water. The expense of the work amounted to £45. 128. The Respondent applied to the Appellants, the Receivers of Her Majesty's Revenue, for payment of this amount, which was refused.

In the month of June 1840, the Respondent brought his action against the Appellants and the Deputy-Viscount, to recover this sum.

On the 19th of June 1840, the cause came on before the inferior number of the Royal Court, consisting of the bailiff and two jurats, when the following record of the proceedings was made.

Royal Court of the Island of Jersey, 19th June 1840. Between Thomas Le Breton, Esq., the Queen's Attorney-General, Helier Touzel and Matthew Amiraux, "Esquires, Receivers of Her Majesty's revenues in this island, and Philip Le Gallais, Esq., Deputy- Viscount, on the one part, and Mr. Philip Le Capelain of the "other part, suing them to pay him the sum of £45. 12s, sterling, the amount of what is due to him for an "apparatus for warming the Royal Court House, ac

cording to an agreement made with the said Deputy"Viscount. On the request of the Attorney-General " and Receivers, that the Plaintiff do produce the alleged agreement in the action, the Plaintiff declared "that there was no written agreement, but that it had "been done verbally with the Deputy-Viscount, for "the account of the receipt of the Revenues of Her

1842.

ATTORNEY

JERSEY and others

v.

CAPELAIN.

Majesty. After which, upon the request of the Queen's Attorney-General and Receivers, that the Deputy-Viscount declare whether this be so, the GENERAL "Court decided, by the casting vote of the Chief Magistrate, that the Deputy-Viscount should state "how the matter stands. The Deputy-Viscount thereupon stated that he had ordered, at the charge of the receipt of Her Majesty's Revenues, in pursuance of the order which he had received from the Court, according to custom, the work and materials whereof payment is demanded, and that the charges are in "conformity with the agreement; and the Deputy"Viscount asked to be dismissed from the action. "And on the plea of the Queen's Attorney-General " and Receivers, that it being acknowledged that the "Receivers have not ordered the works which are the "subject of this demand, and upon their plea, that "they have neither employed the Plaintiff to do any "work on account of the receipt, nor authorized nor "sanctioned the works,-that no person has the right

or power to dispose of any part of Her Majesty's "Revenues, excepting the Governor and the Receivers, "nor to order any work at the charge of the receipt, "without the previous and special consent of the Go"vernor, that moreover, the receipt of Her Majesty

can, under no circumstances, be liable for the works "in question, which only became necessary, in consequence of the alterations which have been effected " in the Hall of Audience of the Court, by virtue of an "Act of the States, and under the direction of a com"mittee of that body, without the participation of "the Receivers of Her Majesty's Revenues; and the "Queen's Attorney-General and Receivers have asked "to be dismissed from the action."

OF

1842.

GENERAL OF JERSEY and others

v.

CAPELAIN.

The Court then pronounced judgment to the folATTORNEY- lowing effect :-" Inasmuch as from all time the Vis"count is bound to make all necessary disbursements "for the repair of the Royal Court House, at the charge of the receipt of Her Majesty's Revenues, "and as the warming of the said Court has always "been paid by the said receipt, and that moreover, "the work for which payment is demanded was of "absolute necessity, the Court has discharged the Deputy-Viscount from the action, and condemned the other Defendants to the demand and costs."

24th Feb.

1841.*

From this sentence the Appellants were allowed to appeal to the greater number of the Royal Court of Jersey, who, on the 30th of September 1840, affirmed the judgment of the inferior number. The Appellants then applied for leave to appeal to Her Majesty in Council, which was refused, the subject-matter of the appeal not amounting to the sum of 2001., required by the Orders in Council of the 13th of May 1823; the Judicial Committee, however, on a special application, allowed the appeal.

The case now came on to be heard ex parte, in consequence of the Respondents not appearing to the appeal.

Mr. Kindersley, Q. C., for the Appellants.

The Royal Court of Jersey had no jurisdiction or authority over Her Majesty's Revenue, and, therefore, no power to subject the Revenue to the payment of any such expenses as those in respect of which the action was brought. The revenue is not, by any law, custom, or

* Present: Lord Brougham, Lord Denman, Mr. Justice Bosanquet, and the Right Hon. Dr. Lushington.

.1842.

GENERAL OF

JERSEY

บ.

CAPELAIN.

usage, liable to such expenses. The expenses arising from the repairs of the Court House, effected at the instance ATTORNEYof the States, have always been defrayed out of their own revenue. It is impossible to sustain the judgment and others appealed from; for the Appellants did not engage or employ the Respondent in the work, or in any manner authorize the same. The only person liable was the Deputy-Viscount, who employed the Respondent to do the work; yet he is discharged from the action, while the Appellants are condemned to pay the demand,

with costs.

Lord CAMPBELL:

Their Lordships are of opinion that the judgment must be reversed, with costs. Dismiss the AttorneyGeneral of Jersey and the Receivers from the action. The tradesman who supplied the goods will have a good ground of action against the Deputy-Viscount.

THIS was an Appeal from the Decree of the Supreme 18th May, & Court, whereby it was ordered that the Appellant

20th June, 1842.

The Vicar

* Present: Lord Wynford, Lord Brougham, Lord Campbell, the General of the Vice-Chancellor Knight Bruce, and Right Hon. Dr. Lushington.

Roman Catholic Church at Gibraltar, is

liable to account for the fees received by him for administering the offices of the Church, such fees being by custom regulated, and subject to the control of

1842.

HUGHES

v.

PORRAL.

should pay to the Respondent Anthony Porral, as treasurer of the other Respondents, as such body of elders as in the pleadings mentioned, all such fees and monies as he had in his hands, or possession, of the funds, of the Church of Saint Mary the Crowned, of Gibraltar, and that he should pay monthly and every month, all such fees or monies as he should thereafter collect and receive, as the funds of the said Church, to the said Anthony Porral, the treasurer of the Assembly of Elders, or to the treasurer for the time being, of the said Assembly of Elders. That the injunction formerly granted, to restrain the Defendant, his servants, and all other persons whomsoever acting under him, or by his order, from interfering in the management, paying away, or administering the funds of the said Church, be continued.

The case, as alleged and set forth in the Plaintiffs' bill, disclosed the following facts :-In 1704, the Town and Fortress of Gibraltar having been conquered by the British arms, was ceded by treaty, and became part of the possessions of the Crown of England. By the treaty of cession, the free exercise of their religion was guaranteed to the Roman Catholic inhabitants. At the period of the place coming into the possession of the Crown of England, there was, and has since continued, a Roman Catholic Cathedral

the Assembly of Elders or Junta, of which he is the head, and disposed of by them for the general purposes of the Church. Decree granting injunction against the receipt of such fees by the Vicar-General, and directing him to replace in certain parts of the Church, the tariff, or table thereof, varied by dissolving the injunction, and decreeing him only to account as receiver, for all sums paid to him on account of the same.

This Court has no jurisdiction to direct the release of a party imprisoned for a contempt of the Court below, pending an Appeal respecting the merits of the Suit.

Evidence not adduced in the Court below or forming part of the transcript admitted on motion to be used at the hearing of the Appeal, subject to all just exceptions.