1820. 0. THOMPSON and others. being, that Churchwardens are not obliged to expend any Money out of their own pockets. In that Case, Chief Justice Holt says, "We cannot order the Parish LANCHESTER or Overseers by a Mandamus to make a Rate to raise Money to reimburse an Overseer." In the Note to Dawson v. Wilkinson, several Cases are cited: The King v. The Chapelwardens of Bradford (g), is there referred to; in which Case, Lord Ellenborough says, "The regular way is for the Churchwardens to raise the Money beforehand, by a Rate made in the regular form, for the Repairs of the Church, in order that the Money may be paid by the existing Inhabitants at the time, on whom the burthen ought properly to fall." The Plaintiff is without remedy. Having chosen to make himself responsible before a Rate had been levied, this Court cannot relieve him; it has not the means of doing so. If any of the Parishioners disapproved of the Rate as informal or unnecessary, they had a right to object to it; they had reason to object, and were successful in their objections; they incurred no responsibility on that account. Where Churchwardens have properly laid out Money, they ought to be repaid, though they could not enforce such repayment; but if this Case were entered into, the conduct of the Plaintiff would be found very exceptionable, and such as creates no moral obligation to repay him the unnecessary Expenses he has occasioned. The VICE-CHANCELLOR : A Plaintiff who comes into this Court to have a Church 19th January. Rate made for his benefit, necessarily admits that his Case is such that he has no Remedy in the Courts of ordinary jurisdiction, and he is bound to make out a Special Case, entitling him to equitable Relief. In the Case before Lord Ellenborough, it was established that 1820. v. THOMPSON and others. no Church Rate can be legally made for the reimbursement of a Churchwarden, because that would be to' LANCHESTER shift the burden' from the Parishioners at the time, to future Parishioners. The Law was the same with respect to the Poor Rate, until a late Statute. And although the Spiritual Court may compel a Church Rate for the purpose of Repair, it must follow the Law, and cannot compel a Rate for reimbursement. A Court of Equity must equally follow the Law, and it can be no ground of Relief here, that a Party has failed to use legal diligence. The only way in which it seems possible for the Plaintiff to shape a Special Case for equitable Relief, is to say, that a Vestry having authorized him to proceed in the Repair, without a previous Rate, it is against conscience that the Parish should now object to him the illegality of that Proceeding. The Vestry can be said to represent the Parish only when they act legally; and if the true construction of the Vestry Order in question, is, that the Plaintiff might proceed without first obtaining a Rate, such Order was illegal, and could create no Equity against the Parish, and the utmost effect of that Order upon such a construction, would be to raise an Equity against the Individuals concurring in it, upon the ground that they ought not to be excused from the payment of their proportion of a fair Rate, because the Plaintiff, relying upon their Authority, had neglected to obtain a previous Rate. If, however, such an Equity could be maintained, the Bill is not framed for such a purpose, nor are the Persons concurring in that Vestry Order made Parties to it. Upon these principles, the Parishioners, who opposed the making of a new Rate for the Plaintiff, were well justified both at Law and in Equity; but if it were possible to raise an Equity against the Parishioners who opposed the satisfaction of the Plaintiff's demand, all the Parishioners who were Parties to the written Agreement must be brought before the Court, and not two or three Individuals only. Where it is attempted to proceed against two or three Individuals, as representing a numerous Class, it must be alleged that the Suit is brought against them in that character, which is not the case here. Bill dismissed, with Costs. 1820. LANCHESTER v. THOMPSON and others. KING v. NOEL. 20th January. On a Motion to dismiss for want of Prosecution, the Clerk in Court, in his Certificate as to Proceedings in the Cause, (which may be obtained after the Motion is A MOTION had been made in this Case, in the last (a) Wills v. Pugh, 10 Ves. 402. M'Mahon v. Sisson, 12 Ves. 465; and see 1 Ves. & made,) must not state any Proceedings subse quent to the 1820. 21st January. COUPLAND and others v. BRADOCK. After an Order A MOTION was made to discharge an Order in this to elect whether Cause for leave to file Exceptions nunc pro tunc, as being irregularly obtained. the Plaintiff will proceed in Equity or at Law, the Plaintiff cannot, on a Motion of course, move for leave to file Exceptions, nunc pro tunc, but ought to make a special Application for that purpose, and for an Order to sus pend the Election until the Excep tions are answer ed. The Defendant put in his Answer on the 18th September 1819, and after the expiration of eight days in Michaelmas Term, viz. on the ninth day of the Term, 15th November 1819, obtained an Order "That the Plaintiffs, their Clerk in Court, and Attorney at Law, having Notice thereof, should within eight days after such Notice, make their election in which Court they would proceed; and if the Plaintiffs should elect to proceed in this Court, then their Proceedings at Law were thereby stayed by Injunction, but if the Plaintiffs should elect to proceed at Law, or in default of such election by the time aforesaid, then the Plaintiffs Bill was from thenceforth to stand dismissed out of this Court, with Costs, to be taxed by the Master." This Order was left with the Registrar to be drawn up, but owing to the press of business could not be obtained until the 22d December, and was not passed and entered until the 24th, on which day it was served on the Clerk in Court of the Plaintiff, and on his Attorney at Law. The Registrar's Office closed on the 24th December, and did not open until the 7th of January 1820. On the 3d of that same January, the Defendant's Attorney was served with a Notice dated 1st January 1820, signed by the Plaintiffs Attorney, stating that Exceptions had been taken to the Answer, and that the Order for liberty to file them would be served as soon as the Offices opened; to which the Defendant's Solicitor replied that he considered the Plaintiffs Bill as dismissed, with Costs, to be taxed, under the Order of the 15th November 1819. On the 10th January 1820, the Order for liberty to file Exceptions nunc pro tunc was served. Mr. Agar, and Mr. Duckworth, in support of the The Order was, that in default of an election within eight days, the Bill should be dismissed, with Costs, to be taxed. No election was made within the eight days. The Bill therefore stands dismissed. The Order referring the Exceptions nunc pro tunc, was not served until some days after the expiration of the eight days, within which the Party was to elect. Mr. Bell, contra :— A Plaintiff cannot be put to an election, until the time for excepting to the Answer has expired (a). The question then is, if Exceptions to the Answer nunc pro tunc are filed before the expiration of eight days, within which the election is ordered to be made, that is a sufficient ground to stay the election, until the Exceptions are answered? In the Case of Injunctions, Exceptions to the Answer are a sufficient Answer to a Motion to dissolve the Injunction. In fact, we could not elect within the eight days, because the Office was not open. If Exceptions are taken before an application for an Order to elect, the Order cannot be obtained until the Exceptions are answered; and if after an Order to elect, Exceptions are taken, it seems upon principle, that the taking Exceptions suspends the Order to elect until the Exceptions are answered. (a) See Browne v. Poyntz, ante, vol. iii. p. 24. |