1842. HUGHES v. PORRAL. Court of Law or Equity can enforce, and consequently has no power to regulate. III.-Because the Decree appealed from, in effect, directs the Appellant and his clergy to demand the payment of exorbitant fees from the Roman Catholic population of Gibraltar, for the administration of the sacraments and rites of their Church-fees that are much beyond the means of the Spanish population, and the exaction of which would lead to the most serious evils, and which the Appellant, as the Roman Catholic Vicar-Apostolic of Gibraltar, cannot in conscience, and without violating his most sacred duties, permit to be received by his clergy. IV. Because there was no evidence whatever given in the cause below, of the election of any Junta of Elders of the Roman Catholic Church of Gibraltar, exercising or claiming to exercise over the temporalities of the Church, and the ecclesiastical functions of the clergy, the powers and authority claimed by the Respondents in their Bill, or to justify the declaration in the Decree, "that the customary right of such elders to manage and administer the temporalities of the Catholic Church of Gibraltar ought to be established;" or to prove that any body of laymen ever interfered in the management of the temporalities of the Roman Catholic Church of Gibraltar, otherwise than as a Council called by the Vicar to aid him with their assistance, but without any power of controlling him. V. Because, supposing such a Junta to have been legally established by custom or otherwise, the Respondents have given no evidence whatever that they are, as they allege, the majority of such Junta ; or that any of them were duly elected or appointed the members thereof. VI. Because evidence was improperly received in the Supreme Court; and one of the Respondents was examined as a witness in the cause, and extracts from the document called the "Book of Archives," were admitted without any proof whatever of the authenticity or custody of that book. VII. Because the Respondents, having filed no replication to the answer of the Appellant, ought not to have been allowed to give any evidence in opposition thereto. VIII. Because the Decree directs the Appellant to pay to the Respondent, Anthony Porral, all sums of money which he has received on account of the temporalities of the Church, without specifying the amount to be paid, and without directing any account to be taken of such sums. IX. Because the said Decree directs the Appellant to pay to the said Anthony Porral all the future fees to be received as the funds of the Church, and to put up and place in their former accustomed places within the body of the said Church the said then tables of fees; which directions are contrary to the practice of Courts of Equity, and do not, under the circumstances of the said cause, come within the jurisdiction of a Court of Equity. The Respondents, on the other hand, insisted that the Appeal ought to be dismissed, and the Decree of the Court below affirmed, for the following reasons: I. That the said Decree is according to equity and justice, upon the case made and proved on the part of the Respondents, the Plaintiffs, on the hearing of the said cause. II. That the rights and duties of the Respondents, the Elders of the said Church, are most beneficial, and 1842. HUGHES v. PORRAL. 1842. HUGHES v. PORRAL. June 20th 1842. tend, in the highest degree, to the well-being and good government of the said Church, and are established by a lawful course of proceeding, custom, and usage, time out of mind, and acquiesced in, and acted upon, by the Vicars of the said Church. III. That the Appellant most especially has, both prior and subsequent to his becoming Vicar of the said Church, recognised and acted upon and bound himself by the same, and ought not, in justice, to be permitted any longer to dispute or question the same. Mr. Kindersley, Q. C., Mr. C. P. Cooper, Q. C., and The Solicitor-General (Sir W. Follett), Mr. Turner, The following authorities were cited and referred to Their Lordships during the argument, intimated an opinion that they could not take judicial cognizance of the canonical oaths taken by the Appellant; that the question, as far as they could take cognizance of it, was, whether he had received money in the form of fees, and as incident to his office of Vicar-General, which he was bound either by an express or implied contract to pay over, and, if so, to whom such fees were to be paid; that the taking of such fees made (a) 3 Knapp, 130. (b) 7 East, 449. him, in fact, a receiver, and involved his liability to account, which they were of opinion he ought to do, and they accordingly varied the Decree of the Court below, by dissolving the Injunction, and made the following report to Her Majesty in Council: "That the said Decree of the said Supreme Court of Gibraltar, of the 30th January 1841, ought to be varied, and that, instead of being as it now is, the same ought to stand, and be as follows:-It appearing that, according to the usage and practice of and in the Church of St. Maria la Coronala, and the administration of the concerns and affairs thereof, which have existed and prevailed during a long series of years, next before and up to the appointment of the Appellant to the office in that Church now held by him, and for some time afterwards, and to which usage and practice the Appellant, by accepting, as he did, such office, and by his subsequent conduct, must be taken to have agreed to confirm; their Lordships are of opinion that the sum of dollars 175. 11. 5. and the sum of dollars 214. 6. respectively, in the Appellant's answer, or the Schedule A. thereto annexed, received by him for parochial dues, ought to be paid by him to the treasurer, for the time being, of the Cahildi, or body of Elders of the said Church for the time being, to be by such treasurer applied according to his duty in that behalf; and it appearing that the Respondent, Anthony Porral, is such treasurer, and the Respondents not desiring that any account should be taken against the Appellant in this suit, or that in this suit any direction should be given touching the Appellant's receipts prior to the 8th November 1840, or the receipts (if any) subsequent to, or not included in, the accounts contained in the said Schedule A.; and it not appearing to be 1842. HUGHES บ. PORRAL. 1842. HUGHES บ. PORRAL. necessary to the protection of any right belonging to, or claimed by, the Respondents, that the Injunction granted in November 1840 should be continued,—their Lordships are further of opinion, that the Injunction ought to be dissolved, without prejudice to any question of right between the parties, and that the Appellant ought to pay, within three months, to the Respondent, Anthony Porral, as such treasurer as aforesaid, the said two several sums of dollars 175. 11. 5. and dollars 214. 6., to be by him applied according to the duties of his office of treasurer, and that the said Appellant ought to pay to the Respondents the costs of this suit up to the Decree of January 1841, inclusive, to be taxed by the Master of the Court below, if the parties differ; and their Lordships do direct that the parties do respectively bear their own costs of all subsequent proceedings, to the present time inclusive. And their Lordships are of opinion, that any of the parties should be at liberty to apply to the said Supreme Court at Gibraltar touching the Receiver that has been appointed, or otherwise, consistently with this Report, in case Her Majesty should be pleased to approve the same, and to order as is herein recommended; and such order of approval on this Report is to be without prejudice to any question as to the right of the sum of dollars 23. 7. and the sum of dollars 8. 1. 12. for alms respectively in the said schedule mentioned, or either of them, and without prejudice to any future proceeding in respect of any receipts by the Appellant subsequent to the year 1840, if any." This Report being approved by Her Majesty in Council, an Order in accordance therewith was drawn up. |