Ex. Div.]

[Ex. Div.

CASE.

For the year 1874-1875, an assessment under schedule D was made by the commissioners for the district above named upon Andrew Handyside and Company (Limited), a company carrying on the business of iron founders in the parish of St. Alkmine, in Derby.

The assessment made upon the company was 86421., the amount taken from their own report, and therein specified as net profits; but in this amount a sum of 15091. 78. 6d. is shown as "amount written off for depreciation of buildings, fixed plant, and machinery."(a) The company (the now respondents) on their appeal to the commissioners on the 29th June 1875, produced a balance sheet for the year ended on the 29th June 1874, being their first year of trading, and objected to the charge in respect of the sum of 15091. 78. 6d. ; and contended that, inasmuch as such sum had no real existence, but was written off in the accounts in accordance with the articles of association, as the works must of necessity depreciate from year to year, and as the sum expended in repairs could not entirely replace such depreciation, they were justified in writing off that amount as a deduction.(b).

The surveyor (the now appellant) objected that the sum appealed against was a deduction in respect of capital, and as such was contrary to the provisions of the 3rd rule of section 100 of the 5 & 6 Vict. c. 35, that no allowance for depreciation was provided for in the said Act, and that sect, 159 prohibited any deductions being made except those expressly enumerated in the Act.

The majority of the commissioners, however, being of opinion that persons in trade were equitably entitled to write off from their profits each year a sum for depreciation, and that the amount claimed was fair and reasonable, decided in favour of the company.

The surveyor being dissatisfied with such decision, requested that a case for the opinion of the court should be stated.

The opinion of the court is therefore desired as to whether the appellants (the now respondents, the company) are justified in making and should be allowed the deduction of 15091. 78. 6d. claimed by them for depreciation.

The material parts of the Act of Parliament

(a)In the course of the argument it was admitted that the company had, as they might properly do, written off a certain amount for repairs actually done.

(b) The 138th article of the company's articles of association on which they relied as above mentioned is as follows: "The directors may from time to time, before recommending any dividend, set aside out of the net profits of the company such sum as they think proper as & reserve fund, for the purpose of meeting contingencies, or of purchasing, improving, enlarging, rebuilding, restoring, reinstating, or maintaining the works, plant, and other premises or property of the company, or the erection or construction of new buildings, works, or plant, or for equalising dividends, or for any other purposes connected with the business of the company, or in furtherance of any of the objects of the company; and the same may be applied accordingly from time to time in such manner as the directors may determine. The reserve fund, or such part thereof for the time being as is not invested as hereinafter provided, may be used for the general purposes of the company. The interest of the reserve fund shall be treated as annual profits of the company."

referred to in the case and the judgment of the court, arc the third rule to the first case in Schedule (D) sect. 100, of the Act, and sect. 159. Rule 3 is as follows:

Third, in estimating the profits and gains chargeable under Schedule (D), or for the purpose of assessing the duty thereon, no sum shall be set against or deducted from, or allowed to be set against or deducted from such profits or gains on account of any sum expended for repairs of premises occupied for the purpose of such trade, manufacture, adventure, or concern, nor for any sum expended for the supply or repairs, or alteration of any implements, utensils, or articles employed for the purpose of such trade, manufacture, adventure, or concern, beyond the sum annually expended for such purposes according to an average of three years preceding the year in which such assessment shall be made; nor on account of any loss not connected with or arising out of such trade; nor on account of any capital withdrawn therefrom; nor for any sum employed or intended to be employed as capital in such trade, &c. ; nor for any capital employed in improvement of premises occupied for the purpose of such trade, &c.; nor on account or under pretence of any interest which might have been made on such sums if laid out at interest; nor for any debts except bad debts proved to be such to the satisfaction of the commissioners respectively; nor for any average loss beyond the actual amount of loss after adjustment; nor for any sum recoverable under an indenture or contract of indemnity.

Sect. 159 enacts:

That in the computation of duty to be made under this Act in any of the cases before mentioned, either by the party making or delivering any list or statement required as aforesaid, or by the respective assessors or Commissioners, it shall not be lawful to make any other deductions therefrom than such as are expressly enumerated in this Act, nor to make any deduction on account of any annual interest, annuity, or other annual pay. ment to be paid to any persons out of any profits or gains chargeable by this Act, in regard that a proportionate part of the duty so to be charged is allowed to be deducted on making such payments; nor to make any deduction from the profits or gains arising from any property herein described, or from any office or employment of profit on account of diminution of capital employed, or of loss sustained in any trade, manufacture, adventure, or concern, or in any profession, employment, or vocation.

Pinder (with whom were the Attorney-General (Sir J. Holker, Q.C.) and the Solicitor-General (Sir H. S. Giffard, Q.C.), for the Crown, contended that the company were not entitled to the deduction which they claimed in respect of this sum of 15091. 78. 6d., set asiae by them to meet the expected yearly depreciation in their machinery and works. Admitting the company to be justified under their 138th article of association, in writing off this sum, the deduction is one which cannot possibly be allowed in law, being quite contrary to the express terms of the Act of Parliament: (see Rule 3, case 1, schd. D., sect. 100; and sect. 159 of the 5 & 6 Vict. c. 35). They have already claimed in their account and been allowed a sum for repairs; but this amount now claimed is no more or less than an addition to or an investment of capital. This precise point of depreciation was before the First Division of the Scottish Court in Feb. 1875, in the case of Addie and Sons v. The Solicitor of Inland Revenue (12 Scottish Law Rep. 274), and the short judgment of the Lord President (in which the three other Lords of Session concurred), is so completely in point, and so decisive of the present question, that I will read it as my argument on the part of the Crown on the present occasion. His Lordship said, "The appellants have been assessed under schedule D. in respect of profits from their husi

Ex. Div.]

ness of ironmasters, and they claimed to have deducted from such profits two sums of 55251. and 44351., as a percentage for pit sinking and depreciation of buildings and machinery, upon the ground that the sinking of new pits, though only an occasional thing, is still part of what may fairly be called the annual expenditure, necessarily incurred in realising the profits from their trade. There is, I think, only one point to be determined here, and not two, as represented, because the machinery and buildings connected with a pit appear to me to be just part of the pit itself. It is one compound structure necessary for the working of the mine, and the question is whether, under the special rules of the Income Tax Act, they are entitled to deduct something on account of the amount expended in making a new pit. Now I am quite clear that the making of a new pit in a trade of this kind is, in every sense of the term, just an expenditure of capital. It is an investment of money, of capital, and must be placed to capital account in every properly kept book applicable to such a concern. Now if that be so, it seems to me that the provision of the third rule under the first head of sect. 100 of the Property Tax Act, is conclusive upon the question before us, because it is there provided that in estimating the balance of profits and gains chargeable under schedule D., or for the purpose of assessing the duty thereon, no sum shall be set against, or deducted from, or be allowed to be set against, or be deducted from, such profits or gains on account of any sum employed, or intended to be employed, as capital in such trade. It seems to me that it is quite unnecessary to go beyond that one part of the statute. No doubt some support may be had also from the 159th section, but I think this rule is in itself perfectly conclusive. As soon as you ascertain that this is an expenditure of capital, there is an end to any proposal to deduct anything in respect of it, and on that simple ground I think the judgment of the commissioners right."

Grantham, for the respondents, the company, contra, was called on by the court.--This point has never been discussed or decided by any court except in the Scotch case now cited on the part of the Crown, and which I submit does not apply. In the case, as that was, of a mine, and a pit, and machinery for bringing up coal, where a new shaft is sunk or opened, it is a new concern, and an investment of new capital. But here, in these heavy ironworks, the wear and tear is great, and the actual work causes a very large depreciation in the machinery and works, &c., every year, which cannot be met by mere repair. [KELLY, C.B.Were it not for the words of the Act of Parliament I should be inclined to think that the view of the matter would be in your favour.] No doubt the words of the Act are strong, but I submit the present is a very different case from the Scotch mining case. That was, no doubt, a question of capital; but the present case does not come within the provision of the Act which was intended to apply to capital. The depreciation here cannot be met in any other way, and if this is not to be allowed, all the capital would in a few years

be gone. No doubt as my friend has argued-if the entire machinery is worn out in course of years, and is replaced by new, that would be charged to capital; but here it has to be reinstated every one or two years, piece by piece as it were;

[Ex. Div.

it is a depreciation going on constantly, and not occurring entirely at any one time, and a clean sweep made once for all. No average for three years can be arrived at. Now the company has only been at work some eighteen months, and they are entitled to make the deduction now claimed; and at the end of three years, when the average amount of the repairs can be correctly calculated, they can be surcharged for any that may have been wrongly deducted. The rule in the sixth case in Schedule (D) to section 100 is applicable to the present case, and the commissioners, who are well qualified to judge in the matter, have decided on a fair and equitable view of the matter, and that decision the court will uphold.

Pinder was not called upon to reply.

KELLY, C.B.-Whatever may be our opinion of the justice and fairness as regards commercial or manufacturing interests, of some parts of this Act of Parliament upon which there is no case now before the court, and upon which I do not feel myself at liberty at all to comment, it is perfectly clear that upon the 3rd rule in the first case in schedule D of the Act, the respondents, the traders, are not entitled to the deduction which has been claimed by them. It appears that in the 138th article of the company's articles of association there is a provision that a reserve fund is to be formed, and before recommending a dividend, and of course, therefore, before they pay any, the company, perhaps very prudently and properly, agree to set aside from their net profits a sum as a reserve fund for the purpose of meeting contingencies. But what are those contingencies? They are a variety of matters which the company have no more right to deduct from the net profits and say that the net profits are thereby diminished and that they have not really netted that amount of profit, than they would have a right to deduct a sum which they might spend upon the purchase of a house or a carriage. What they say is that it is 66 for the purpose of meeting contingencies, or of altering, improving, enlarging, rebuilding, restoring, reconstructing, or maintaining the works, plant, and other premises or property of the company. Now I leave out the word pairing," because it is admitted that they are entitled to deduct, and they have deducted, a sum for repairs; and we must take it for granted, as there is no appeal against that deduction on the one side or the other, that it is a proper deduction according to the Act of Parliament. The article then goes on to say, "or the erection or construction of new buildings, works, or plant, or for equalising dividends, or for any other purposes connected with the business of the company, or in furtherance of any of the objects of the company, and the same may be applied accordingly from time to time in such manner as the directors may determine." The question, then, is, are the company entitled to claim a deduction in respect of that portion of the reserve fund which they have set aside for the purpose of applying, or which they may have applied, to any of the purposes above mentioned besides repairs. No doubt they are empowered by their articles to set the amount as de and to apply it to any of the many purposes mentioned; but the case shows clearly that such sum is net profit, and in my opinion it is clearly contrary to the Act of Parlia ment that the deduction claimed should be allowed.

re

Ex. Div.]

The Act is quite explicit, and admits of no doubtful or difficult question of construction. It says that in estimating the balance of profits and gains chargeable under schedule D, or for the purpose "of assessing the duty thereon, no sum shall be set against or deducted from, or allowed to be set against or deducted from, such profits or gains on account of any sum expended for repairs of premises, occupied for the purpose of such trade, manufacture, adventure, or concern, nor for any sum expended for the supply of, repairs, or alterations of any implements, utensils, or articles employed for the purpose of such trade, manufacture, adventure, or concern, beyond the sum usually expended for such purposes, according to an average of three years preceding the year in which such assessment shall be made." Now, just let us suppose that this business had been carried on for three or four years, and that the average sum actually expended for the necessary and usual repairs had been 500l. a year, the company, in that case, would be entitled to deduct from the amount of their net profits 500l. The average of the expenditure upon the repairs for the past three years would be about what they would expect to expend in repairs in the ensuing year, the year of charge in question, and that would be a fair and just deduction from their profit. But here it is said that the case is different, because the company have been in business only one year. But, there being no specific proviso in the statute applicable to that state of things, the result is that, if we are to take the average of three years to determine how much may be expected to be expended in repairs in the year to come, and if there are not three, nor even two years, but only one year, we must get the best information that we can, and must judge from what has been done during that one year what will be the probable amount expended in the ensuing year, and calculate the proper deduction on that footing. But the question here is, not what sum has been expended upon repairs, inasmuch as it is admitted that a sum has been set aside and allowed as a deduction from the net profits in respect of the repairs that have been effected, but it is, whether the respondents are entitled to deduct this entire sum of 15091., which may be applied anywhere, or at any time, and in any way they please, for a great variety of purposes, which are actually forbidden, directly as well as indirectly, by the provisions of the Act of Parliament ? All that they are entitled to deduct they have already deducted, namely, the reasonably probable amount of repairs in the ensuing year, and no other deduction is allowed by the terms of the Act. Our judg ment, therefore, in my opinion, should be for the Crown.

POLLOCK, B.-I am of the same opinion. The only question here is whether the amount, 15097. 78. 6d., written off for the depreciation of buildings fixed plant, and machinery, can be properly deducted in estimating the income tax payable by the company. Now, in my judgment, upon no construction of the Act of Parliament can that deduction be made. Strictly speaking, there is no difference between what is called an equitable construction of an Act of Parliament and any other construction. It appears to me that upon the most just and favourable construction of this Act of Parliament, as regards the respondents, they are not entitled to this deduction. There are

[Ex. DIV.

three modes in which this fund to meet the depreciation of machinery may be dealt with. One is by adding to the company's original capital what is called a depreciation fund; the second is by laying aside out of the annual profits, which would be otherwise divisible among the shareholders, a certain sum to meet the estimated depreciation; and the third is by waiting until the depreciation occurs, and then either repairing or reinstating the machinery, so as to make it of equal value and efficiency to that which it was before. There are many ways in which expenses accrue by reason of depreciation. There are cases where there is a renewal of machinery from week to week, and sometimes from day to day; and there are cases in which the machinery, or certain parts of machines employed, may cost many hundred pounds, and the depreciation of which does not occur actually from day to day, or is not appreciable from day to day, but comes in the shape of breakage or other accidental or occasional occurrences, and as to which there may be a statement from year to year. Now, the way in which that would practically be met under this Act of Parliament is this: Whether the depreciation were small or great, and the consequent reinstatement small or great. it would all, in the long run, supposing the concern to be a going concern, be met justly and fairly under this Act, when the money was actually expended; because the words of the 3rd rule, under the 1st case of schedule D are, "Nor for any sum expended for the supply of repairs or alterations of any implements, utensils, or articles employed for the purpose of such trade, manufacture, adventure, or concern, beyond the sum usually expended for such purposes. Therefore, where machines are employed which require new parts to be supplied every week, or every month, or at the end of a year, or when a breakage occurs and causes a large outlay to repair it, all that expense and outlay comes in in the average of three years, however large the amount may be. In that way perfect justice would be done between the parties, and the deductions which the company now claim would, in the long run, be allowed them. But it may be said that, supposing it is not a going concern, and there is a sale, then there would be a very great depreciation; but that depreciation does not affect any question arising under this Act of Parlia ment. A depreciation always takes place when a concern is sold, not as a going concern, but as one that has failed, or for some reason or other has stopped. The only question for our consideration is, whether this estimated amount, laid aside from year to year, or written off for the depreciation of buildings, fixed plant, and machinery, comes within the words of the section. I think it quite clear that it does not, and that therefore the commissioners in this case were wrong, and that consequently our judgment should be for the Crown.

HUDDLESTON, B.-I am of the same opinion. It is quite clear on reading this case that this sum of 15091. is a sum which any prudent person would no doubt put by or lay aside for the purpose of meeting what may be called the expenses of renewal. The articles of association clearly contemplate that it should be carried into the capital account, and that the comp my might make use of the money, but if they did so it would be in the capital account, appearing on one side as drawn or

expended on the capital account; and it is quite clear that it would be treated for all purposes of bookkeeping, and for all usual purposes, as capital. The Scotch case, which has been referred to, clearly adopts that view, because, of the two sums, 50001. was to have supplied the buildings necessary for the new pit, which would be capital, and 4000l. was there, as here, written off for the depreciation, and the Scotch court thought that that clearly would be capital. Then, if that be so, it clearly comes within the 3rd rule, and cannot be taken into account. And that 3rd rule is rendered still more imperative by the 159th section of the Act, which says that no deduction shall be made other than those expressly enumerated in the Act. This sum of 15091. 78. 6d., therefore, ought not to be allowed, and the company will have to pay income tax upon 5,1517. 78. 6d., which is the sum which they enter as profits-namely, 86421., plus the amount (15091. 7s. 6d.) which they claim to deduct, and which they otherwise have deducted. I therefore think that the judgment of the commissioners cannot be upheld, and that our judg. ment must be for the Crown.

Pinder. Will your Lordships in this case give some directions with regard to costs?

KELLY, C.B.-I think that we can say nothing

about costs in a case of this kind.

Judgment for the Crown. Solicitor for the Crown (appellants).-The Solicitor for Inland Revenue.

Solicitor for the company (respondents).-F. Stanley.

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.

Reported by C. E. MALDEN, Esq., Barrister-at-Law.

March 14 and 21, May 29, and July 11, 1876. (Present: the Right Hons. the LORD CHANCELLOR (Cairns), Lord HATHERLEY, Lord PENZANCE, Sir BARNES PEACOCK, and Sir MONTAGUE SMITH.) MARSTERS 1. DURST.

ON APPEAL FROM THE COURT OF ARCHES.

Ecclesiastical law - Ornaments of the church·
Moveable cross- -Retable.
A moveable cross of wood placed on a
"retable," or
wooden ledge, fixed to the wall at the back of the
Communion Table, and close above it, so as to
appear at a short distance to be one entire table,
with the intention that it should remain there
permanently, is forbidden by law.

Judgment of the court below reversed.
Westerton v. Liddell (Moore's Special Report) and
Liddell v. Beal (14 Moo. P. C. 1; 3 L. T. Rep.
N. S. 218) explained and followed.

THE appellant in this case, Saddleton Marsters, was the parishioners' churchwarden of the parish of St. Margaret's, in the borough of King's Lynn, in the diocese of Norwich.

The respondent, the Rev. John Durst, was the vicar of the parish.

On or about the 27th May 1875, the respondent of his own motion, without any faculty, and without the consent of the appellant, placed, or caused to be placed on a retable immediately behind and above the Communion Table of the church, a moveable cross made of wood, which was so placed there as to appear to form one of the ornaments of the Communion Table.

[PRIV. Co.

The appellant, in his capacity of churchwarden, subsequently removed the cross as having been placed on the retable without lawful authority, and as not being one of the church ornaments prescribed or allowed by law.

The respondent thereupon instituted criminal proceedings in the Court of Arches against the appellant, and filed articles against him for having so removed the cross, and prayed not only that he should be monished for removing the cross, but further that he should be admonished to restore the same to the retable.

The appellant filed a responsive allegation, wherein he admitted that he had removed the said cross, and in so far as he might have offended against ecclesiastical law therein submitted to the judgment of the court, but prayed the court not to require him to restore it to its former position, alleging in Article 4th as follows:

"That the defendant objects to an order being made as prayed by the promoter for the restoration of the said cross so removed by the defendant as in the fourth article alleged on the following grounds:

"(1) That the said cross, which is removed and 1875 introduced into the parish church by the made of wood, was on or about the 27th May promoter, and placed by him or under his authority, where it remained until removed by the defendant, on a shelf or retable at the back of and immediately above the Communion Table in the said church, without a faculty or other lawful authority.

“(2) That the said moveable wooden cross, before the same was removed by the defendant, was placed on the said shelf or retable, which is fixed immediately behind and above the Communion Table of the said church, and was so placed as to appear to form one of the ornaments of the Communion Table that such moveable cross, by reason of its not being one of the ornaments of the church prescribed in the rubrics or subservient in or subsidiary to the performance of the services of the church, is not a lawful church ornament, and cannot lawfully be replaced on the said retable.

"(3) That the restoration of the said moveable wooden cross on the retable would offend the conscientious feelings of a large number of the parishioners of the said parish who are members of the old Church of England."

The respondent objected to the admission of the 4th and 6th Articles of the Responsive Allegation.

Sir Robert Phillimore, the late Dean of the Arches, on the 20th Oct. 1875, by his interlocutory order or decree, rejected the 4th and 6th Articles of the Responsive Allegation with costs (L. Rep. 1 P. & D. 123).

The case came on for hearing in March last, but, as it appeared that there was no dispute as to the facts, their Lordships ordered them to be stated in the form of a special case.

May 29.-J. F. Stephen, Q.C. and Dr. Tristram, for the appellant, contended that this was an attempt to evade the law as laid down in the cases of Westerton v. Liddell (Moore's Spec. Rep.) and Liddell v. Beal (3 L. T. Rep. N. S. 218; 14 Moo. P. C. 1). The cross was not a mere architectural decoration, as it was moveable, and was therefore illegal, as not being an "ornament" prescribed

by the rubric, or subservient in, or subsidiary to the performance of the services of the church: Martin v. Mackonochie, 19 L. T. Rep. N. S. 503; L. Rep. 2 P. C. 365;

Elphinstone v. Purchas, 23 L. T. Rep. N. S. 446; L.
Rep. 3 A. & E. 66.

A. J. Stephens, Q.C. and W. G. F. Phillimore, for the respondent, argued that to pronounce this cross illegal would be to interfere with the main principles of the decisions in Westerton v. Liddell and Liddell v. Beal, which were practically indistinguishable from this case. A distinction is to be drawn between things used in the services and things" inert," or not actively used. The "ornaments rubric" does not apply to furniture such as this cross, its legality consists in its inertness. They also referred to Phillpotts v. Boyd (32 L. T. Rep. N. S. 73; L. Rep. 6 P. C. 435), and the case of the Rev. Parkes Smith, decided by the Bishop of Exeter in 1847, and reported in Stephen's Laws of the Clergy, vol. 2, p. 1083.

J. F. Stephen, Q.C. in reply. Cur. adv. vult. July 11.-Their LORDSHIPS gave judgment as follows: This is a criminal suit promoted in the Court of Arches against the appellant, who is one of the churchwardens of the parish of St. Margaret, in the borough of King's Lynn, for having removed from the church, without a faculty, a certain moveable cross of wood which had been placed on a ledge called a "retable," at the back of and above the Communion Table. The respondent is the vicar of the parish, and the cross was placed there by his authority, but without the sanction of a faculty. In the court below exception was taken to certain passages in the responsive allegation filed by the appellant, and they were ordered to be struck out. The present appeal is in form an appeal from that order, but on the case being opened it appeared to the parties that, as the facts were not really in dispute, it would save both expense and delay if they agreed to a statement of fact in the form of a special case, and took the decision of the Court of Appeal upon the merits of the case. Their Lordships consented to that course being pursued, and the case has been fully argued upon the special case so stated. The question which their Lordships are thus called upon to decide is the single one of the legality of a cross of this description in the place which it occupied when the appellant removed it from the church. The special case states that the cross is above three feet in height; that it is a moveable one; that it was placed by the respondent's orders on a structure of wood called a "retable," consisting of a wooden ledge at the back of the Communion Table, having a front of wood about eight inches deep, coming down to within five-sixteenths of an inch of the surface of the Communion Table, and that this structure is fixed to the wall by nails. A photograph is appended to the special case, from which, and the statements in this case, it is plain that the Communion Table and the "retable" would at a very short distance bear the appearance of one entire table or structure. It is further stated that the cross placed on this ledge with "the intention that it should remain there permanently." On the part of the respondent it was contended that the cross was a moveable one, and constituted part of the church furniture; that it was not one of the "ornamental instruments used in the church services; and that it fell within the category of MAG. CAS.-V01 X

was

[PRIV. CO.

things "inert," which were mere architectural decorations. On the part of the appellant it was contended, amongst other things, that the case fell within the principle of the well-known decision in the cases of Liddell v. Westerton (Moore's Special Rep.) and Liddell v. Beal (14 Moo. P. C. 1); and as their Lordships are of that opinion, it will not be necessary to go again into the subject at large, or do more on the present occasion than point out what it was that those cases really decided, and give reasons for the conclusion that the present case cannot in principle be distinguished from them. The two cases in question concerned the church of St. Paul and the chapel of St. Barnabas. In both instances there had been placed on the Communion Table a cross, and in both instances these crosses were held to be illegal. It is important, therefore, to consider what the character of these crosses was, and on what grounds they were ordered to be removed. In the Chapel of Ease of St. Barnabas the things complained of were first a rood-screen and a cross thereon, which cross was held to be lawful; and secondly, "a stone table or altar with a metal cross attached thereto," and this cross was held to be unlawful. The cross complained of in the Church of St. Paul was attached to the Communion Table, and is thus described in the judgment at page 2-" Their Lordships understand that this table, described as an altar or Communion Table, is made of wood, and is not attached to the platform, but merely stands upon it; that it is placed at the east end of the church, or the chancel, according to the ordinary usage as to Communion Tables; that at the end nearest the wall there is a narrow ledge raised above the rest of the table; that upon this ledge, which is termed super-altare,' stand the two gilded candlesticks, which are moveable, and between them the wooden cross, which is let into and fixed in the super-altare so as to form part of what is thus described as the altar or communion table." It will be observed that this description closely tallies with the description as given in the special case of the Communion Table in the present case. There is here, as there, a moveable table, and a ledge of wood raised above the table at the back of it, and on this ledge two candlesticks, and a cross between them. The differences are that in St. Paul's Church the ledge of wood was called a "super-altare," while in this case it is called a retable; " in St. Paul's Church the ledge stood upon the table, while in this case it is fixed to the wall and does not quite touch the table, being separated by about a quarter of an inch from it; and finally, that in Saint Paul's Church the cross was "let into and fixed' in the ledge, while in the present case it was not fixed, but placed on the ledge, "with the intention that it should remain there permanently." It is upon these differences of structure that the respondent relies, and he points particular attention to a passage in the judgment relating to the cross in St. Paul's Church, which is as follows: "Next with respect to the wooden cross attached to the Communion Table at St. Paul's. Their Lordships have already declared their opinion that the Communion Table intended by the canon was a table in the ordinary sense of the word, flat and moveable, capable of being covered with a cloth, at which or around which the communicants might be placed in order to partake of the Lord's Supper;

2 K

66