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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Hall (No. 1) [1828] NSWSupC 84; sub nom. R. v. Hall (No. 2) (1828) Sel Cas (Dowling) 661

trespass, church pew, ecclesiastical law, mandamus, civil procedure

Supreme Court of New South Wales

Forbes C.J., 25 September 1828

Source: Australian, 26 September 1828

REX v. HALL. -  The Solicitor-General, in this case, addressing the Court, observed, that the present was an information filed against Mr. Edward Smith Hall, for a trespass committed in the Church of St. James's, by breaking into a pew, and creating a disturbance.[1 ]  The defendant pleaded the general issue.  The Solicitor-General further addressed the Court upon the subject of the defendant, and his contumacy in persisting to keep possession of his church pew, notwithstanding due notice being given him, that the said pew was required for the accommodation of certain civil officers.  The defendant, however, so far from treating the officers of the Church with that becoming spirit which was to be expected, had thought proper to attempt an entry into the pew by force, which was repeated on several occasions; and the present information was therefore brought, not with any view whatever of seeking damages against the defendant, but in order to try if the defendant were to be considered in law as justified in keeping possession of a pew, the rental of it not having been renewed to him for the current quarter.

The defendant in reply dwelt upon the incapacity of the Ordinary, as the Commissary of the Bishop of the Diocese, to dispossess him of his pew.  Admitting all the Solicitor-General had advanced, he had only gone to shew that the Ordinary had the power of regulating and appropriating the pews of the Church; but he had not attempted to cite a single instance in the books, to shew that the Ordinary had the power to dispossess a layman of his ancient seat in the Church, according to m[e]re capricious whim.  The defendant confessed he had personal feelings in the matter, and they were of a touchy, tender character.  He was a true follower and admirer of the Church --- he was the father of sons and daughters --- with whom he had been a constant visitor at church without the exception of single Sunday ever since he had occupied a pew in the Church.  The rental of the pew was always paid, in due course, and on demand; and on the 27th of June last, three days before the rent of the pew becoming due, he paid it, and further tendered a six months advance of rent.  Had it been intimated to him (the defendant), that his pew was wanted, in order to facilitate the new arrangements projected in the Church, he would have been the last man in the Colony to throw any obstacle in the way, provided another pew, equally convenient to his old one, had been afforded him in the chancel of the Church; but, because he would not accept of a cold, comfortless pew, his own pew was barred against him, and he, with his family, obliged to stand like paupers in the aisle; from motives which were too notoriously known to need his farther explanation or comment.  The defendant concluded, by taking some legal objections to the Information; upon which, as they appeared on the record, the Court would not then pronounce a decided opinion.  Under every circumstance of the case, however, the Court would recommend the Assessors to find a special verdict, leaving it with the Court to determine the issue of the points raised in objection.

The Assessors, after remaining out of Court about three quarters of an hour, found a special verdict, leaving the law of the case with the Court.

 

Dowling J., 11 October 1828

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462

[p. 87]

Saturday October 11th 1828[2 ]

Rex v Hall

[p. 88]

[Where a special verdict was found, not finding sufficient facts to raise the question between the parties, a Venire de novo was awarded]

This was an action of trespass at the suit of the [p. 88] King, the declaration alleging that Deft. on the 1st July 1828 and on divers other days and times between &c with force and arms broke and entered a certain Pew of His said Majesty situate in the Parish Church of St James to wit at Sydney &c and then and there staid &c for a long space of time, to wit three hours and then and there forced open and broke to pieces and damaged the door of the said Pew there situate and where with the same was then fastened and of great value to wit 10£. and other wrongs to His said Majesty to the damage of his said Majesty of 100£.  Plea 1st Not Guilty 2nd That the Pew in question belongs to him.  Defendant.  Issued thereon.  At the trial before Forbes CJ. at the late sittings the Assessors found the following special Verdict.

The assessors find specially that the Church called St James was built by the Governor at the public expence and by means of labour paid by the Crown.  That the same was consecrated and a certain proclamation of His Excellency Mr T. Brisbane dated [p. 89] 17 Sept 1823.  The Revd R. Hill, J Oxley and I as Busby Esqr were appointed a Committee with power to Contract with any of His Majesty's Subjects for the hire of Pews or seats in the said Church at reasonable rents by the year that in order to provide for the current expences of each year it was agreed between the hirers of such pews or seats and the said committee that the rent or hire of the same should be paid in advance for the ensuing year.  That this agreement became a custom or understanding in all subsequent years, although from the neglect of the Collectors it was not regularly acted upon.  That the Defendant had occupied a pew in the said Church before the month of June 1827 and that he contracted for the Pew now in dispute in the said Church on the 30 June 1828 that on the 20 June 1828 the Defendant paid to the Collector of Pew rents for the said Church by his promissory note the arrears of rent then due for the last year as well as in advance for the ensuing six months; but that the said note was returned by the said collector to the said Defendant who received the same back again the same day.  That on the 27 June the [p. 90] arrears of rent  were paid up to the 30th of June by Defendant being 3 days advanced and a further advance of pew rent was tendered for six months, but refused by the Collector that on 24th June a letter was addressed by the Registrar of the Arch deacon's Court to the Defendant informing him as follows.  Goulborne Street 26 June.

Sir, Yesterday I received a letter from you as Registrar of the Archdeacon's Court dated 24 inst. informing me that the arrangement of the Pew in the Church of St James having been completed and submitted to the Archdeacon for his approval you were to acquaint me that the large pew bearing the Nos 96 & 97 was vacant and might be rented by me from year to year at 4£ per annum to be paid in advance.  That the above arrangements of the Pews were made by order of the Archdeacon T. H. Scott in virtue of His Majesty's Patent creating him Archdeacon of New South Wales the Bishop of Calcutta and to exercise jurisdiction according to the duties and function of a Commissioner.  By the Ecclesiastical Law.  That the same arrangements were rendered necessary in [p. 91] consequence of the number of Pews being too small for the accommodation of the congregation, and that by the same all the square pews were divided into two that the Pew occupied by the defendant was one of the square Pews and was divided into 2 having a different entrance from its original entrance.  That Defendant on 26 July attended evening service and proceeded to the entrance of the Pew he had therefore occupied but was prevented entering the same by the Beadles and he afterwards entered the Pew but getting over the panels.  That the Defendant admitted he had broken open &c pew and entered the same as in law he conceived he had a right to do on the morning of the same day last aforesaid it and they leave the law to the Court &c &c &c.

The special verdict having been appointed for argument this day.

Sampson S.G. objected that the finding of the Jury was not warranted by the evidence there being no proof that the defendant had contracted with the committee appointed the proclamation of Sir T. Brisbane for that assuming the Revd R. Hill had let the Pew to the Defendant still he had acted [p. 92] under the powers conveyed to the Revd T. H. Scott by the letters patent of 11 February 1824 appointing him Archdeacon of New South Wales.

The defendant who appeared in person refused to have the special verdict amended whereupon.

Dowling J. was not satisfied that the facts were not sufficiently found in order to raise the question intended to be raised, a

Venire de novo[3 ] was awarded

Wentworth moved for a new trial in this case against the direction of the Chief Justice  Cur advult[4 ]

 

Forbes C.J. and Stephen J., 1 November 1828

Source: Australian, 4 November 1828

 

Mr. E.S. Hall rose, as he said, for the purpose of observing that it might be within the recollection of the Court, that at the last Court Sittings, a new trial was granted in the case of Rex v Hall, on the plea of a trespass upon a pew in the Church of St. James's.[5 ]  On that occasion he, Mr. H. had appeared in this Court merely to hear judgment.  He received no notice from the learned Solicitor-General, that he intended to make any objections to the finding of the Jury - when, therefore, those objections were made, from the thing coming unexpectedly, he was unprepared to offer any remarks relevant to them.  It would be within the recollection of their Honors, that the Court submitted to the Solicitor-General and himself, the propriety of mutually agreeing upon the facts.  A proposition was made by the Solicitor-General to agree to a certain fact.  He, Mr. H., thought from the mode of stating the facts, that they were to be inclusive of the evidence which appeared on the notes of the Judges who tried the cause.  He, however, since then, had found that this was not so.  He was quite willing to agree to a fresh finding, provided the amendment was in strict unison with the nature of the evidence taken at the time of trial.  He, by no means wished that the finding of the Jury should be at variance with the testimony  therefore, if the learned Solicitor-General would agree about the finding upon the evidence, and not travail out of it, he, Mr. H., would in such case move that the judgment of the Court be taken at once[.]  Mr. H., after a few further observations, said, he apprehended that the Solicitor-General would have no objection to the arrangement proposed.

The Solicitor-General was about to reply, when the Court interposed, and observed that Mr. Justice Dowling was present at the time the arguments were used on the occasion adverted to, and His Honor not being then in Court, it would be better that any motion of the present nature should be heard when the Bench was full.  It had, observed the Chief Justice, certainly appeared to the Court in the shape of an indefinite motion, which the Court was not at the time prepared for, and ultimately terminated by a conceived assent, venire de novo.  However, it was the wish of himself and his learned colleague with him, that any remarks in the case might be reserved until Mr. Justice Dowling should preside, when their Honors would also attend.  Motion reserved.

 

Forbes C.J., Stephen and Dowling JJ, 20 December 1828

Source: Australian, 23 December 1828

MOTIONS AGAIN.

The King v. E. S. Hall. -  This long disputed cause was again brought under the notice of the Court, by Mr. Solicitor General Sampson moving the Court for a new trial, upon certain grounds set forth in an affidavit, which he (the learned Solicitor General) put in.[6 ]  The chief objection was, that since the trial, an important document connected with the case had been placed in his hands, and of this he wished to make some use.

The motion was opposed by Mr. Keith, on behalf of Mr. Hall, on two grounds.  First, that the notice for a new trial was not given in sufficient time; and secondly, that the affidavit was not sufficiently explanatory.  The Court ruled that the application for a venire de novo ought to be granted.  Without entering into the objections started by the Counsel on either side, it appeared to the Court that the purposes of justice would be better answered by calling for every tittle of evidence in the case, which would lead the Court to grant a new trial.  It was to be recollected that this was a novel application, one quite new in that Court, one to which, after the most diligent search through the law authorities, strictly analogaous [sic] case had not been detected.  The difficulty arose in this way - the Church of Saint James's was to be considered partly parochial and partly government property.  As the case, however, had been a long while on hand, the Court would direct that it should be put down on the first week for the trial of civil issues next term.

Application for a new trial was granted.[7 ]

This gave occasion for some punning.  A wag in the Court observed that as the defendant must still rest contented with being dipossessed of his pew, cum intervallo, his mind must remain in purgatory till the final decree of the Judges relieve it.

 

Forbes C.J., Stephen and Dowling JJ, December 1828[8 ]

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462

[pp 115-116]

[Mandamus refused to compel the Commissioners for letting pews in St James Church to  reinstate a person in a Pew from which he had been forcibly ejected as alleged.]

[p. 115]Rex v Hall

Keith moved for a rule to shew cause why a mandamus should not issue to be directed to the Committee vested by the proclamation of Sir Thomas Brisbane of 17 Sept 1823 with power to contract with H. Majestys Subjects for the hire of seats in St Jame's [sic] Church commanding [p. 116] them to reinstate Mr Hall in his pew until the decision of the Court upon his case should be ascertained.

Per Tot Cur.  This is an application of the first impression, and wholly without precedent.  The defendants right of possession to the pew in question is now sub judice, and thereupon the Court could not interfere, but secondly the Court has no authority to grant a mandamus in such a case.  The Defendant has no inchoate right to perfect, and it is only where there is no other remedy open to enforce a legal right that a mandamus lies, a mandamus will not lie to justices to compel them to grant a licence to a public house.  But without going to authorities upon the subject; on principle this is a case in which the Court cannot grant the application.

Rule refused[9 ]

Notes

[1 ] See also R. v. Hall (No. 1), 1829; Hall v. Scott, 1830.  Church pews were also in issue in a conflict concerning Dr Halloran and Archdeacon Scott: see Historical Records of Australia, Series 1, Vol. 14, p. 393.

Although Dowling J. thought that this particular issue concerning Hall was "perfectly sui generis ... unprecedented in any Court of Justice in which British law [was] administered" (C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, p. 311), Forbes C.J. had decided a similar case in 1818, when he was Chief Justice of Newfoundland: Fitzherbert v. Williams and Gill (1818) 1Newfoundland Law Reports 115.

[2 ] The following is the full account of this day's proceedings published by the Sydney Gazette, 15 October 1828:

"The three Judges sat this morning, for the purpose of disposing of various outstanding business, and hearing motions.

"The King against Hall.

"In this case, which was an action of trespass, quare clausam fregit, the Solicitor General, on the part of the Crown, stated that he was prepared to proceed with argument on the special verdict found by the Court on the trial of the issue, and which he then prayed might be read by the proper Officer.

"After the verdict had been read by Mr. Gurner, the Solicitor General contended, that the finding of the Jury was contrary to evidence.

"The Chief Justice read over his notes of the trial, and stated that, though the express words objected to by the Solicitor General were not to be found in the evidence as taken down by him, yet the whole tenor of the testimony went to shew that the finding of the Jury was substantially correct. - His Honor, however, suggested, with the advice of his learned Brethren on the Bench, that the Counsel for the Crown, and the defendant might, perhaps, even then, agree upon a statement of facts, so as to raise the question of law for the consideration of the Court.

"Some discussion then took place between the Solicitor General, the defendant, and the Court, which ended by a refusal, on the part of the defendant, to allow the verdict to be altered.

"The Chief Justice again repeated his conviction that the finding of the Jury was substantially correct, but the Solicitor General, not being satisfied with His Honor's notes, the Court finally directed a venire de novo.

"This was the celebrated case of the parishioner and his pew."

Quare clausum fregit: for which reason he or she broke the close.  This was the form of words which introduced the medieval writ of trespass to land.  Venire de novo: To come afresh.  A new trial granted because matters on the face of the record show some irregularity or impropriety.

[3 ] To come afresh.  A new trial granted because matters on the face of the record show some irregularity or impropriety.

[4 ] Curia advisari vult: the court wishes to be advised, or to consider its decision.  This means that judgment was not delivered immediately.

[5 ] See also Sydney Gazette, 3 November 1828 for a report of this day's proceedings.

[6 ] See also Sydney Gazette, 17 and 22 December 1828.  The Sydney Gazette reported on 22 December that the "Judges were of opinion, independent of the arguments of the Solicitor General, and of the defendant, for and against the application, that, on the former trial, too great  latitude of evidence had been let in; the real point at issue being, not the powers of the Archdeacon as ordinary in this particular case, but a mere question of contract between the Crown, which brought the action, on one side, and of the subject deriving it through the Crown on the other.  The Chief Justice said, that the case was one of extreme novelty; as, in fact, he had not been able, as far as he had looked into his books, to find one at all like it - all the reported cases being where the actions had been brought by the parson of the parish, of by individuals claiming a parochial right to pews in the parish churches.  The question was one of public importance, and His Honor hoped it would be discussed in a fair and temperate manner, without any heated feeling on the one side or the other, keeping in view the simple point at issue between the parties."  The new hearing was set down for the first week in the next term.

[7 ] See R. v. Hall (No. 1), 1829.

[8 ] The fact that the decision was reached "Per Tot Cur." (per totam curiam) implies that all three judges were present.  It means "by the whole court", and was used when all judges agreed with the conclusion.  From its location in the Select Cases, this decision was made at the end of December, 1828.

[9 ] The litigation between the parties was not completed until 1830, when Hall was finally awarded damages of £25: C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, p. 312.

Published by the Division of Law, Macquarie University