226 1843. Feb. 8th. STEWARD against FRANCIS. In Cooper v. Wickham, the decision of the Court was, that the citation did not set forth,-that the articles did not contain,-a charge that the party was called upon to answer in the character of churchwarden; and it did not appear, that there was any want of repair at the time when the citation issued, or that he had been neglectful of his duty in not pressing that repair. In the present case, the cause of offence is this, for "wilfully and contumaciously obstructing, or at least refusing to make, or join, or concur, in the making of a sufficient levy, rate, or assessment, for providing funds in order to defray the expense of the necessary repairs of the parish church,”—what is the Ecclesiastical offence contained in these words?-in the first place, "wilfully and contumaciously obstructing the making of a churchrate," no such words as these were in, nor was anything of the kind, or of similar import, contained in the citation in Cooper v. Wickham; it was simply an averment that he had voted for such and such a resolution,-one a resolution against church-rates generally, the other against the particular rate, which was not shewn to be necessary for the repairs of the church; here it is fully stated, that it is for wilfully and contumaciously obstructing the making of any church-rate. That is the first charge; it is said that a person cannot be contumacious unless there has been a monition issued against him, which has been disobeyed; and perhaps, that is correctly argued,-what then? The words "contumaciously obstructing," import, that there has been a monition, for if contumacy consists in disobeying a legal order, it follows, from the use of the word " been such an order. contumacy," that there has I have also been told, that a party should be excommunicated, that being the extent to which the Court can proceed, in order to compel a parishioner to provide the necessary means for repairing the church, and that this cannot be done, sine monitione; be it so,-if no monition has issued, then the Court will not proceed, (if that is the law), to excommunicate the party. But it is possible that a monition may have issued, and then the party may be liable to be excommunicated; or if there has been no preceding monition, then the party may have a monition issued against him, in the course of these proceedings. But the question is, whether contumaciously obstructing the making of a rate, supposing that rate to be necessary for the repair of the church, is an Ecclesiastical offence, for which the party is liable to be punished, by excommunication, or by monition and excommunication? The charge goes on, "for having wilfully and contumaciously obstructed," if that had been the specific offence, I should have thought that the charge had not been sufficiently made out, but there is a second count, for "contumaciously refusing to make, or join, or concur, in the making of a sufficient levy, rate, or assessment, for providing funds in order to defray the expense of the necessary repairs," in either of these cases, accordingly as the proofs may turn out, the party will be guilty of one or other of the offences laid to his charge. Again, this case is materially distinguished from 1843. Feb. 8th. STEWARD against FRANCIS. 1843. Feb. 8th. STEWARD against FRANCIS. Cooper v. Wickham, "That he wilfully and contumaciously obstructed, or at least refused to make, or join, or concur in the making of a sufficient levy," a sufficient rate, so that it was to concur in making "a sufficient levy, rate or assessment for providing funds in order to defray the expense of the necessary repairs of the parish church," so that the citation in fact contained this averment,-that the levy proposed, was a sufficient levy, at least not more than a sufficient rate; and it is to make a sufficient levy, that he is charged, to defray the necessary repairs. There is then an averment that the repairs were necessary for which the rate was to be applied. It is not a proceeding against the party, merely, as was suggested, for voting against a rate when proposed, but against a sufficient levy to defray the necessary repairs. Every thing is contained in this averment to constitute an offence, "contumaciously obstructing, or refusing to join or concur in making a rate which was necessary to be made for the repairs of the church," so that the repairs were necessary, and if that is shewn then the rate for providing these expenses was necessary. I am, therefore, of opinion, that this citation does contain what is the charge imputed against the party, and, as I have before stated, it seems to be admitted on all hands, that the Ecclesiastical Court may proceed by ecclesiastical censures to compel the parishioners to provide for the repairs of the church; it follows, as a matter of course, that the proceeding must be, as was stated in the course of the argument, against individual parishioners for what is the argument in that case with which we are all so familiar, the Braintree case? The inhabitants of Braintree state, there shall be no rate, and there can be no rate unless it be made by a majority of the parishioners; that has been held to a certain extent, whether that is correctly the position, is a question hereafter to be determined by the Court, and is now under its consideration; but it is said, there can be no rate, except the majority of the parishioners concur in it. The inhabitants of the parish of St. George of Colegate, in the city of Norwich, say, "You shall not proceed against individuals who do not concur in making a rate." So that ecclesiastical censures, which are proposed, cannot be resorted to by the Ecclesiastical Court, in order to compel parishioners to perform their duty. The Lord Chief Justice Tindal, in delivering the judgment in the Exchequer Chamber, has said, “There is undoubtedly power in the Ecclesiastical Court to compel the making a rate by ecclesiastical censures." It cannot be that the proceedings must be against the whole parish; that must, at all times, be a very inconvenient mode of proceeding, because it does include in the same punishment, the innocent and the guilty. But nobody seems to doubt that the process of excommunication may be proceeded with, whatever may be the consequences, and enforced against parishioners not as a body, not universally, but as against individuals who do refuse to make a rate,-who obstruct, contumaciously obstruct, making the rate; it is the only way in which ecclesiastical censures can be applied, by proceeding against individuals. In the case in the Court of Delegates (Greenwood v. Greaves), ten persons were proceeded against in one citation. In the present 1843. Feb. 8th. STEWARD against FRANCIS. 1843. Feb. 8th. STEWARD against FRANCIS. case, as we know, there are proceedings against other individuals. The promoter of the suit cannot include them all in one citation, it would be contrary to all practice and all rule to do so. There is, therefore, the necessity for proceeding against them individually, provided the power exists of proceeding by ecclesiasitical censures to compel the parishioners to perform their duty in providing means for repairing their church. Under these circumstances, I am of opinion that I must overrule the protest, and that I may safely overrule the protest without at all deviating from, or in the least degree diminishing the effect of the observations which the Court made in Cooper v. Wickham; for I think there is a clear distinction in the two cases. In the one there is no averment of necessity of repairs the party is proceeded against in the office of churchwarden-it was a mere abstract proposition, that the church warden had voted for a certain resolution against a certain rate proposed, it not being known that it was a necessary rate for the purpose to which it was to be applied. Here it is stated in this citation, that the party "wilfully and contumaciously obstructed, or at least refused to make, or join, or concur in the making of a sufficient levy, rate or assessment for providing funds in order to defray the expense of the necessary repairs of the parish church;" containing therefore, in itself, a statement that the church was in need of repair, and that the rate was sufficient for that purpose. I, therefore, overrule the protest, and assign the party to appear absolutely. I reserve the question of costs until the hearing of the cause, |