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at the time, there was reason to suppose that the party interested in it would have set it out, and his not having done so was a proof that at least its existence at that period could not be clearly established. In the case of Morgan v. Tyler, in 1807, there had also been a decree for an account; but there the modus was different; and it was clear that tithe in kind had been taken. Here the Warden and Scholars of New College, Oxford, who were the proprietors of these tithes, admitted that a payment of 3d. per acre had been made in respect of tithe of hay. It was extremely difficult with those documents, and with the admission of the proprietors, to decree an account. There were difficulties in this course in another point of view; but with respect to the cross bill, it was there stated that the modus was 3d. per acre for the northern division, with the exception of the tithe of hay, and it was said that this exception was established upon the evidence of the terrier. When he came to look at the evidence, he did not see any thing on the face of it to establish the fact that this exception existed. Then as to the rolls, which were not contemporaneous with the terriers, but antecedent to them, they could only be made use of, not to establish an exception, but to shew at that time a modus existed. It appeared to him extremely difficult to say that the case, as it appeared upon the cross bill, could be established, and, according to all the rules and the practice of equity, he thought that the cross bill could not be sustained. As neither the bill nor the answer suggested any issue, it was extremely difficult for him to know what issue to direct. When the Warden and Scholars of the College admitted that there had been an immemorial payment of 3d. or 4d. per acre, and, in modern times, a payment of 3d. per acre, unless he knew what issue to direct, and none was suggested, it would be extremely difficult for him to know what course he ought to pursue. The inference to be drawn from the case of Miller v. Jackson was, that unless the court knew what the occupiers prayed for, they, the court, could not know whether to direct an issue or not. Unless, therefore, he were compelled to direct an issue, as, in point of form, he might be, he would at present merely dismiss the cross bill, and would reserve the direction of the issue till Monday next.

Bill dismissed.

Huntingdon, March 5.

THE OFFICE OF JUDGE PROMOTED BY WOOL AND BRIGGS, CHURCHWARDENS OF GODMANCHESTER, V. JAMES PHILLIPS.

THIS was a suit promoted by the Churchwardens of Godmanchester against the defendant, for brawling and smiting in the parish church of Godmanchester. There were nine articles exhibited against him, under the statutes 5 and 6 Edward VI., recognised and confirmed by the more recent ones of 27th and 53d of George III. It appears that the churchwardens, for the accommodation of the parishioners, had divided some of the larger pews, and had assigned to a person, named Fisher, part of one which had formerly been occupied by the family of the defendant Phillips. On the 29th December last, one of Fisher's female children occupied a place in this pew, in company with another girl, when the defendant entered and, after some altercation, forcibly turned them both out; this was in the morning service. In the afternoon, a brother of the girl Fisher, who had been turned out in the morning, took possession of the seat, when Phillips again interrupted the peaceable occupation of it by turning him out also, and in the scuffle struck him on the knuckles and twisted his wrist, in order to make him let go his hold of the pew; and when Fisher attempted to regain his place in it, after having been forcibly expelled, Phillips said in a loud voice to him, "D-n you, if you do not go out I will kick your out of the church." This conduct the churchwardens thought necessary to make an example, and promoted the suit in question. VOL. V.-April, 1834.

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The case

came on for hearing before Richard Smith, Esq. M.A., Commissary of the Archdeaconry of Huntingdon ; and the evidence of the witnesses on both sides (viz. six in support of and two against the suit) having been duly taken, Tuesday last was appointed for giving judgment, which the Commissary delivered as follows:

"This is a suit which has been very properly promoted by the churchwardens of Godmanchester, against James Phillips, for brawling and smiting in the parish church of Godmanchester, on Sunday the 29th of December last. I repeat that I consider the churchwardens have acted very properly, and performed their duty in promoting the suit in this Court, because they found that it could not be entertained by the magistrates, nor by the Courts of Common Law, it being of a nature entirely within the jurisdiction of the Ecclesiastical Law. The articles which have been admitted to proof against the defendant are nine in number. After mature consideration of this case, and an attentive perusal of the evidence on both sides, I pronounce the articles exhibited against James Phillips duly proved. The sanctity of our parish churches and consecrated places has always been and must be respected, and the officers of the church supported by its laws; and whatever provocation the defendant may have imagined he had received from the churchwardens in the distribution of the seats and pews, will not in the slightest degree justify the intemperate behaviour, foul language, and violence which he has thought proper to display and make use of, at such a time and in such a place. The charges proved against him are of a very grave and serious nature. The Act 53 George III. cap. 123, renders it compulsory upon the judge of this Court, in cases wherein the charge of smiting in a church or churchyard is proved, to inflict the punishment of imprisonment for a period, at his discretion, not exceeding six months. I regret that the defendant has not been recommended by his advisers, or rather that he has not followed the advice offered him, to plead an affirmative issue in the first instance, and to admit the charges alleged against him, for by obstinately persisting against what he must have known to be the truth, he has considerably increased the cost and expense of the proceedings, which would otherwise have been trifling in their amount. Hoping that a lenient punishment will, upon the present occasion, produce the desired result, and prevent any future similar proceedings, the sentence of the Court is, that for the brawling the defendant James Phillips be suspended ab ingressu Ecclesiæ, for the space of one month; and for the smiting and laying violent hands upon John Fisher, that he be imprisoned in the county gaol for the space of one week, and that he be condemned in the sum of 10l. in part of the costs of this suit."

Worcester, March 10.

DOE DEM. COYLE, CLERK, v. COLE.

MR. SERGEANT TALFOURD (with whom was Mr. Richards) stated this was an ejectment brought by the vicar of Blockley to recover possession of the Free School-house at Blockley, of which the defendant, Benjamin Cole, (formerly the conductor of the National School, Oxford) was the master. The learned sergeant said, the defendant not only refused to give up possession of the school, but had threatened to turn it into a brazier's shop. In support of his case, the following witnesses were called :

William Powell, mason, stated that he was 67 years of age. Remembered the old school at Blockley; it did not stand in the church-yard, but out of the church. He pulled down the old school, and built a new one in the year 1826, by the order of Lord Northwick. The new school was built partly in the church-yard, and partly out. The new building projects into the churchyard about seven feet. He found bones in digging the foundation of the new school in the part next the church-yard.

On cross-examination by Mr. Curwood, for the defendant, witness said, he thought the new school projected about twenty feet into the church-yard, but was not certain.

Mr. Justice Patteson summed up, and told the jury the only question for them to consider was, whether any part of the new school had been built in the church-yard; if so, the vicar was entitled to a verdict for that part. With respect to the part of the premises not built in the church-yard, as it appeared that the defendant had been regularly appointed to the mastership, he certainly had a freehold interest in it, during good behaviour, and was, therefore, entitled to a verdict for that part.

Verdict for the plaintiff for the seven feet of ground which had been encroached on the church-yard, and execution limited to such seven feet.

Court of Exchequer-March 10.

MASTERS v. FLETCHER.-JUDGMENT.

LORD LYNDHURST stated that the plaintiff in this case was vicar of the parish of Runcorn, in the county of Chester; the defendants were certain occupiers of land in that parish; and, secondly, the Dean and Chapter of Christ Church, Oxford, the impropriate rector of the parish; and, thirdly, Sir Richard Brooke, lessee of the rectory. The objects of the suit were the tithes of agistment and the tithes of turnips and potatoes, and further of wool, lambs, calves, and milk. There was a great mass of evidence, partly documentary and partly consisting of the depositions of witnesses who had been examined, some in this case and some in the case of Cunliffe v. Taylor. His learned predecessor had pronounced upon the whole of this evidence a very able and elaborate judgment, in which he decided against the vicar as to the tithes of agistment, turnips, and potatoes, and the bill was dismissed in respect of these. The learned Chief Baron directed also issues to inquire as to alleged moduses with respect to tithes of wool, lambs, calves, and milk. The trial of these issues came on at the assizes for the county of Chester, and upon all of them verdicts were found against the vicar. An application upon that occasion was made to the learned Judge, upon the ground of there being no evidence to support the affirmative of the issue that a modus was payable to the vicar in respect of milk, but the learned Judge decided that there was evidence to sustain such a modus. Then an application was made to the Judge to put that question to the jury, and to endorse the finding on the postea. The learned Judge thought he could not put any question to the jury other than those they were assembled to try, and refused the application very properly, as he (Lord Lyndhurst) thought. A motion was then made in that court (the Court of Exchequer) for a new trial, and that the parties might have all the benefit they would have had if the endorsement had been actually made. He was then of opinion that there was no ground for a new trial, and he entertained the same opinion still. He also was of opinion that the motion with respect to the endorsement ought not to be granted, and he still entertained that opinion. An application for a rehearing of the cause was then made, upon the ground that that part of the decree which directed an issue as to a modus in respect of the tithes of milk was a mistake. Upon looking into the record, the judgment of the learned Chief Baron, his predecessor, he was of opinion that this part of the decree had been inserted by mistake. It appeared to him inconsistent with the whole tenor of the evidence, and the principles on which the learned Judge professedly founded his judgment. He, therefore, had thought that there should be a rehearing of the cause in that respect. He had also determined that the decree in Cunliffe v. Taylor formed a sufficient ground for a rehearing of the With respect to the claims of the vicar for tithes of agistment, turnips, and potatoes, and also as to the claim of Sir R. Brooke to exemption from pay

case.

ment of tithes upon wool and lambs, as proprietor of a domain which formerly belonged to a monastery, the first and most important question was with respect to the claims of the vicar for the tithes of agistment, of turnips, and of potatoes. It was said that he was entitled to those tithes. The principle, however, laid down by his learned predecessor, it appeared to him, could not be controverted. In the evidence he found nothing upon which the court could act to alter the decision as to the perception of the tithes of agistment, of turnips, and potatoes. Neither on the part of the vicar, or the rector, was there any evidence worth attending to on this point; and, with respect to enjoyment by the vicar, it obviously turned, since 1816, on a misapprehension or difference in the decree in Cunliffe v. Taylor; therefore, on these three points the question remained open, and, as there was no evidence of perception on one side or the other on which any reliance could be placed, the decision must remain as before the rehearing. His Lordship then proceeded to examine the evidence at considerable length. The questions mooted by his Lordship were mostly of a technical nature, and not involving principles interesting to the general reader. The conclusions to which he arrived were as follow: -The motion for a new trial refused, with costs. The application to the Judge with respect to the endorsement on the postea refused, with costs. No other costs on either side, except that the vicar shall pay the costs of the issue, with the exception of milk, in respect of which the former decree was varied.

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A LETTER from Oxford, in another part of this Magazine, comes forward in a truly chivalrous feeling, and desires to place that University in the foremost post of danger at the present moment. But the fact is otherwise; and Mr. Spring Rice's speech of yesterday was a very just and impressive (though, in this case, not deserved) comment on the good effect produced on adversaries by the great panacea of the day, conciliation. "Oxford," said Mr. Rice, "pursues a consistent and intelligible course. It holds itself to be a church-ofEngland University, and it admits no one who is not, But Cambridge is perfectly intolerable, for it does admit dissenters; and then, after finding how amenable to discipline-how excellent, in all respects, they are, turns round, and will grant them no degrees, because they are dissenters." So that Cambridge has to bear the brunt of the battle just now, and not Oxford.

Has Cambridge, then, nothing to say for itself? Just a word or two. And, first, to dispose of Mr. Rice's splendid fallacy as to the admission of dissenters there. Not to argue whether Mr. Rice knew it or not, every one else knows that they are not admitted as dissenters, but are required to conform, to attend to the worship of the church, to receive the religious instruction given by churchmen to churchmen. What becomes of Mr. Rice's conclusion as to the inconsistency and injustice of Cambridge, in refusing dissenters degrees, when it never undertook to grant them-when it never recognised any persons as dissenters?

And, secondly, to dispose of the other fallacy, vended so quietly, as to the origin of the restrictions-viz., that it began in the time of

James I., when, before that, the doors were open to all. How well do they know history who say this! Do they really not know that there were no restrictions before, because there was no one to restrict, because the church and the state recognised no dissenters as such, and because it was not till the time of James I. that it was necessary to recognise their existence as a separate body?

But, next, for that is the more important question, is there any thing wrong, either to the church or dissenters, in this course? The church surely cannot complain that persons are not required, in word, to declare their adherence to her at one time rather than another, provided they are required to do it by act. But the dissenters, it seems, may. They cannot complain, as has just been shewn, of being misled by false hopes. Neither can they complain of the practical grievance of being deprived of the instruction of the most celebrated men in England, for that they may have. Neither can they complain of being deprived of distinction, for their names may appear, and have appeared, in the list of honours at the annual University

examination.

But they cannot have degrees as dissenters. That certainly is true. But, practically, how great is this grievance?

First of all, a large portion of dissenters meet you with a strong declaration, that, on points of faith, on these very articles, the signing which is made such a grievance, we agree. Let any clergyman say whether this is not the case-whether, time after time, he has not been told by dissenting parishioners, "Why, Sir, our minister himself says he has no fault to find with your articles." Such dissenters, then, are not practically aggrieved by being called on to sign themto do that, be it remembered, which the law, very long, called on every dissenting minister to do, as the condition of his being allowed to teach.

But next, it will be said, this is all very well in theory, but, in practice, we do find that many dissenters are prevented from getting degrees. The reply to this is, that the assertion is not founded in fact, and that very few are prevented; but that, on the other hand, dissenters, or dissenters' sons, feel so little difficulty about the matter, that, year after year, not only do they conform as undergraduates, but actually, cheerfully, and willingly proceed to their degrees. This shall be proved to the satisfaction of all manner of men, very shortly, by the exhibition of such a list of names of persons in this condition as will shew that, though this may be a grievance, it is not a practical grievance. In the very list of petitioners are some such; and it would be rather hard to contend that these gentlemen did not subscribe ex animo and conscientiously.

And again, may it be further asked, whether the number of persons, who can be thus aggrieved, is not extremely small, that is, whether the large majority of dissenters, being somewhat below the middling ranks, and of those above it a large number (as is shewn above) not feeling any conscientious scruple to the Thirty-nine Articles, nor to degrees obtained by signing them, the number of those actually aggrieved, if any, is not so absurdly small, that it would be unreasonable in the highest

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