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pecuniary value to the plaintiff; but he left it to the 1850. jury to estimate the value with reference to all the cir

HILCOAT cumstances, as they appeared in evidence before them, - leaving the question of value entirely to their judg- The Archment.

bishops of

CANTERBURY The evidence upon the other issues was also left to

and YORK, the jury, with a direction, that, if the defendants had declined to pay the value of the said ground and buildings to the plaintiff, the plaintiff was entitled to the verdict upon the issue of not guilty.

The jury found a verdict for the plaintiff, damages 15401., and also found verdicts for the plaintiff on the other issues.

Upon the argument in support of the rule, the questions raised at nisi prius were again brought forward ; that is to say, it was contended,—first, that the defendants were constituted and appointed arbitrators or judges, with power and authority to determine the value conclusively, as between the plaintiff and the company, of the ground and buildings not forming part of the site of the church or chapel, and that the jury ought to have been so directed, — secondly, that the jury ought to have been directed to estimate the value to the plaintiff of such ground and buildings, as being irrevocably consecrated and bound to spiritual uses, and incapable by the plaintiff of any other application.

We have considered the arguments which have been addressed to us on these questions; and we are of opinion, that, upon the true construction of the statute, the defendants were not constituted and appointed arbitrators and judges to determine conclusively upon the value of the property for which the plaintiff was entitled to be paid.

The language of the statute does not warrant any such construction. The defendants were authorised to agree with the company as to the amount to be paid,

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1850.

Hilcoat

The Arch

bishops of CANTERBURY and YORK.

with reference to all the objects which the defendants
were impowered to accomplish ; and they had an unfet-
tered discretion in regard to the amount which they
should require to be paid, with very specific directions
as to the sums which they would have to pay and dis-
burse out of the amount which they should agree to
accept.

By section 10. they are directed to have regard to
the sum which would be required for the purchase of a
site, of a certain size, for a new church, for completing
the church, and fitting up the same in all respects for the
performance of divine service therein, and also to have re-
gard to the value of such part of the ground and buildings
thereon as did not form the site of the existing church;
and likewise, if the defendants should think fit, to the
cost of purchasing the surplus pew-rents: and they
were by section 11. distinctly charged with the duty of
employing the money which they should accept from
the company, among other purposes mentioned, in
making payment of the value of so much of the said
ground and buildings (as did not form part of the site
of the said church.] (a)

The duty of the defendants, therefore, was most distinctly marked out, with ample means of performing it: and, as they had unrestrained power to vest the property of the plaintiff in the company, against the consent of the plaintiff, they were bound, before they devested such property from the plaintiff, to put themselves in a situation to compensate him according to the terms of the act of parliament. Neither of the sections contains any expressions whatever importing any power upon their part to bind the plaintiff as the owner. They were under no obligation to give him any notice of their proceedings, or to consult, or even

(a) The words contained between the brackets are struck

through in the original judg-
ment- apparently by accident,

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to hear him; ror had he any power of calling witncsecs
before them, or of interfering in any manner in their
negotiation with the company, or decision : and the
only protection or security given to the owner, is, the
imposition of the duty and obligation upon the de-
fendants, before they deprived the plaintiff of his pro-
perty by ve sting it in the company, to put themselves
in the condition of being provided with the means of
paying him the value of the property which they had
taken from him and vested in the company.

The mode they have adopted for their own security,
appeared by the evidence, as before stated, to be, the
taking an indemnity from the company against the
claim of the plaintiff: thus making the company the
real defendants in the cause ; who, it also appeared,
had the conduct of the defence.

The court consider the duty of the defendants to be plainly expressed in the act of parliament; and that the evidence shews that they have committed the breach of that duty which is complained of in the first count of the declaration, in having omitted or refused to pay to the plaintiff the value, as found by the jury, of the ground and buildings before referred to; that the verdict, therefore, on the issue of not guilty has been properly found for the plaintiff; and that there is no ground to disturb such verdict: and, further, that the duty so imposed upon the defendants, and the breach of it which they are charged with committing, is sufficiently stated in the first count of the declaration; and that there is no ground for arresting the judgment.

The second point made by the defendants, in support of the rule, was, that the jury had been misdirected upon the question of the amount of the damages, and that the verdict was against the evidence, — upon which latter grounds, a new trial was asked for.

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1850. The objection that the verdict was against evidence,

has been disposed of in considering the validity of the HILCOAT

first count of the declaration; inasmuch as that objecThe Arch tion depended upon the question whether the jury

bishops of ought to have treated the determination of the deCANTERBURY and York.

fendants as to the amount of the value, as conclusive, --- upon which the opinion of the court has been already expressed.

The alleged misdirection consisted in the jury being told that they were not bound to estimate the value of the ground and buildings for which plaintiff was entitled to be paid, as land irrevocably appropriated to spiritual purposes, of which the plaintiff could make no pecuniary advantage, but that it was competent to them to form their estimate of the value, with reference to all the circumstances that had appeared in evidence before them, and the question being left upon the evidence in the cause to the unfettered judgment of the jury. The court is of opinion that there was

no misdirection in thus submitting the question of damage to the jury.

The question of value was clearly for the jury; and it may not be very plain by what precise rule or test the value should be estimated. The owner is to be paid the value. That enactment is unaccompanied by any words of qualification or restriction : and there seems no reason for construing the words in any other than their ordinary sense and meaning.

The act of parliament passed for the purpose of withdrawing the church, ground, and buildings from the spiritual appropriation, and applying them to secular uses; and, in connexion with that determination, the duty was imposed of paying the owner the value of the ground and buildings not forming the site of the church: and, in the absence of any peculiar rule being prescribed for ascertaining such value, it is

reasonable to infer that the value was to be ascertained 1850. in relation to the nature and situation of the property

HilcoAT generally, and its applicability to ordinary purposes,

01. discharged of any prescribed appropriation. If the The Archicompany had thought they had any claim to take land bishops of

CANTERBURY to be used by them for secular purposes, but that the

and YORK. owner was to be paid only the value estimated upon the footing of its being irrevocably appropriated to spiritual purposes, they ought to have asked parliament for a distinct enactment to that effect; when the parties would have been heard upon it. But, having obtained the power to take the property discharged of its spiritual appropriation, and to apply it to secular purposes, connected with pecuniary profit, upon the terms of paying the value generally, the right to insist upon having such value estimated by some peculiar and restricted test, is by no means obvious.

By the appropriation of property to ecclesiastical or spiritual purposes, the owner voluntarily sacrifices the pecuniary value of the property so appropriated: but he makes that sacrifice to obtain an object which he estimates of greater value than pecuniary value. But, when that object is entirely withdrawn from him, by the application of the property, against his will, to secular uses, and those uses connected with pecuniary profit, - it does not seem consistent with justice to estimate the value to the owner upon the footing of its irrevocable appropriation to those spiritual purposes from which it has been already withdrawn.

The several grounds, therefore, upon which it has been attempted to support the rule, having failed, the rule must be discharged.

Rule discharged.

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