1850. HILCOAT V. The Archbishops of CANTERBURY and YORK. with reference to all the objects which the defendants were impowered to accomplish; and they had an unfettered 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 disburse 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 regard 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. to hear him; nor had he any power of calling witnesses 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 defendants, before they deprived the plaintiff of his property by vesting 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, which latter grounds, a new trial was asked for. upon 1850. HILCOAT น. The Archbishops of CANTERBURY and YORK. The objection that the verdict was against evidence, has been disposed of in considering the validity of the first count of the declaration; inasmuch as that objection depended upon the question whether the jury ought to have treated the determination of the defendants 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 in relation to the nature and situation of the property generally, and its applicability to ordinary purposes, discharged of any prescribed appropriation. If the company had thought they had any claim to take land to be used by them for secular purposes, but that the 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. 1850. HILCOAT 17. The Archbishops of CANTERBURY and YORK. 1850. tion stated that the defendants were possessed of a mooring anchor, which was kept by them fixed in a known part of a navigable river, covered by ordinary tides, - that the anchor had become removed into, HANCOCK and Another v. THE YORK, NEW- The declara- CASE. The declaration stated, that the plaintiffs, before and at the time of the committing of the grievance by the defendants as thereinafter next mentioned, were lawfully possessed of a certain ship or vessel, to wit, of the value of 30007, laden with coal, to a large amount, to wit, 20007., then lawfully being in the river Tyne, the same being a public navigable river; that the defendants, before and at the time of the committing of the said grievance, were possessed of a certain anchor, called a mooring anchor; that, before the committing of the grievance thereinafter mentioned, the said anchor had been placed and fixed in the soil of the said river, and there ordinarily remained, at and on a certain known part thereof, wherein the said anchor would be covered by ordinary tides, and would be then invisible; that, before the committing of the said grievance, the said anchor, while so fixed, came into the possession of the said company, and the said company, while the said anchor was so in their possession, and before the committing of the grievance thereinafter next mentioned, had notice of the premises; that, while the said anchor was means and in the possession of the said company, so fixed as aforepower of refixing and said, and before the committing of the grievance thereinsecuring the after next mentioned, the said anchor, until the same beanchor, and indicating it, they neglected so to do, whereby the plaintiffs' vessel, whilst sailing in a part of the river ordinarily used by ships, ran foul of and struck against the anchor, and was thereby damaged, &c:-Held bad, on demurrer, for not shewing that the defendants were privy to the removal of the anchor, or that it was their duty to refix it and to indicate it. and remained in, another part of the river covered by ordinary tides, not indicated, whereof the defendants had notice, and although they had the |