10

PROHIBITION.

Superior Courts; Queen's Bench.

ECCLESIASTICAL

SIMONY.

COURT.

Where, therefore, the Archbishop of York,
on his visitation by his commissary, received
in answer to some of his visitatorial articles,
a letter from one of his clergy, charging
the Dean of York with simony, and pro-
ceeded as under the visitation, and in that
character alone, to a sentence of deprivation,
this Court granted a prohibition.
The prohibition in such case, lies after sen-
tence where the Commissary's Court has
merely adjourned.

Quære, whether it would lie if the commissary
had dissolved his Court.

There

This

an agreement was made to subject these disputes to the decision of an arbitrator. The A proceeding against an ecclesiastical person meeting at which this agreement was made, tending to deprivation, must be taken ac-did not take place till the 21st of February. cording to the mode prescribed by the 3 & 4 In the mean time certain answers to the interVict. c. 86. rogatories were put in by some of the members of the capitular body, and one gentleman, the Reverend Mr. Dixon, amongst other answers, returned one to the 19th article in the following form: "that the churches of the dean and chapter which are in many counties, are repaired; the chancels are usually let, and are left by the provisions of the leases to the lessees, and the presentment sold, but whether the proceeds are applied to repairs does not appear." This answer was understood to mean to charge the dean with having simoniacally sold the presentations of the chapter. was a second meeting of this visitation apIn this case a rule had been obtained, calling pointed, and in the mean time a letter written on the defendants to shew cause why a writ of to the dean, and this letter was the only citation, prohibition should not issue, commanding or summons of any kind which he appeared to them to abstain from taking further proceed- have received, and on which proceedings were ing in the matter of a sentence of deprivation subsequently founded, that terminated in a pronounced by the Archbishop against Dr. sentence against him, depriving him of his Cockburn, the Dean of York. The facts of deanery and of all ecclesiastical preferments in the case were shortly these. Certain differ- the archbishopric. The letter referred to was ences had existed among the members of the as follows: "Dear Sir, it was only by yestercapitular body of York, respecting the property day's post that I received Mr. Dixon's answer. of the trustees of the chapter fund. There The answer to the nineteenth article involves was an order made by the dean and chapter a charge against you, which has not before to pay a sum of money to the dean. One of been brought to my notice, and which is of so the canons residentiary, Mr. Harcourt Vernon, serious a nature, that I enclose a copy of it a member of the capitular body, stated that he for your perusal, in order that you may proshould appeal against that order. He did ap- perly reply thereto, on Thursday next." peal, and there was a citation for a visitation letter was signed by Dr. Phillimore. The to take place on the 18th of January. There 21st of February was the date of the letter, had not been an instance known of an archie- and the meeting was to be held by adjourn. piscopal visitation in York since 1715. A ci- ment on the 24th of that month. In answer to tation for a visitation was issued on this occa- this letter, the dean wrote another saying, that sion. At this visitation Dr. Phillimore ap- he was then at three hundred miles distant, peared as the commissary or commissioner and that he could not attend at the time spefrom the archbishop, under authority of a com-cified at that period of the year. The meeting mission, which stated that the archbishop had was then again adjourned to the 23d of duly and lawfully appointed a visitation to be March, when Dr. Phillimore stated that it was held on the 10th of January, between the his intention to try the dean on the charge of hours of eleven and two, and which went on simony, as contained in the answer of Mr. thus, "and whereas we were about to com-Dixon. A regular monition was served on the mence the said visitation in person, but may dean to appear on that day, and answer the after find ourselves prevented by certain other charge. Neither at that time, nor at any business, &c.," therefore Dr. Phillimore was other time were there any articles exhibited to appointed commissary. It was under the au- the dean. The dean stated that he protested thority thus conferred, that Dr. Phillimore against the jurisdiction of the commissary in acted as commissary. On the 18th of January, respect of the churches, and this occasioned a certain articles were exhibited by the arch-considerable altercation between the dean and bishop, and they had relation to various matters connected with the chapter and the cathedral. The 19th of these articles or interrogatories was in these terms: "Are the chancels of churches and chapels belonging to your body in good and sufficient repair?" that interrogatory had led to the circumstances which had since taken place in the cathedral. On the 18th of January, the articles were administered. No answers were at that time given, but as there were certain disputes respecting the property of the chapter, it was thought better that they should be referred to arbitration. This proposition was assented to by all the parties interested in the dispute, and

Dr. Phillimore, who at first refused to accept the protest, insisting that the dean should plead to the charge, but this the dean refused to do. Dr. Phillimore, in consequence of this protest, pronounced the dean in contempt. This was on the 23d of March. On the 1st of April, he held another sitting as commissary, and then pronounced the following order. " Joseph Phillimore, Doctor of Laws, Regius Professor of Civil Law in the University of Oxford, and Advocate of the Court of Arches; Commissary for the purpose of holding a visitation of the Most Reverend Father in God, Edward, by Divine Providence Lord Archbishop of York, Primate of England and Metro

Superior Courts: Queen's Bench.

politan: Whereas you, the Very Reverend William Cockburn, Doctor in Divinity, Dean of the Cathedral and Metropolitan Church of Saint Peter, of York, on the 23d day of March last, pending the proceedings of the said visitation have been pronounced contumacious and in contempt, and have continued ever since wilfully to absent yourself from the same. We, therefore, in virtue of the authority conferred upon us by the said Lord Archbishop, the visitor as commissary, do by these presents peremptorily monish you, the said Very Reverend William Cockburn, to appear before us in the said cathedral and metroplitan church in the place wherein the said visitation was this day holden, at the hour of half-past eleven in the forenoon of to-morrow, then and there to purge yourself from the said contempt, and to return to the lawful obedience of the Ordinary, on pain of canonical punishment. Given under the seal of the said Lord Archbishop, the first day of April, in the year of our Lord, one thousand eight hundred and forty-one." As the dean did not appear on the following day, the commissary proceeded in his absence to examine on oath, and viva voce, certain witnesses, and then made his report to the archbishop, who on the authority of that report, declared that the dean was convicted of simony. The conviction was alleged to proceed on the charge of simony, preferred against the dean by the Reverend Mr. Dixon. The declaration went on to allege that the dean had at first appeared before the commissary, but had afterwards been pronounced contumacious and in contempt, for having wilfully interrupted the progress of the proceedings, and declared that he would not submit to the authority of the Court. The conviction declared the dean deprived of his deanery and of all Ecclesiastical preferment within the Archbishopric of York. After these proceedings had been taken the Court adjourned.

11

The

exist in the commissary of the bishop. In Godolphin's Ecclesiastical Law, it is stated that any spiritual person is visitable by the ordinary, as is the dean. The ancient custom was for the visitor to visit in his own person. In Blackstoneb it is said that "the law has provided proper persons to enquire into and correct the irregularities of corporations. With regard to all ecclesiastical corporations, the ordinary is their visitor, so constituted by the canon law, and thence derived to us. pope formerly, and now the king, as supreme ordinary, is the visitor of the archbishop, or metropolitan; and the bishops, in their several dioceses, are in ecclesiastical matters the visitors of all deans, &c." Comyn's Digest,c shews that he may suspend or deprive for contumacy. The cases of Baker v. Rogers, and Smith v. Shelbourn,e support the doctrine that the ordinary or the commissioners may deprive for simony. Walrond v. Pollard, is a strong authority, for it is the case of a dean being tried on a visitation, and it was moved and agreed that the dean was visitable of the bishop of mere right. The case of the Bishop of St David's, is to the same effect. Lord Coke affirms the doctrine,h and it was adopted by Lord Holt in Phillips v. Bury, and his judgment was confirmed in parliament.k Against this decision of the visitor there is not in any case any remedy but by way of appeal. At all events prohibition does not lie, for the proceedings are at an end, and there is no one to whom to address the writ. If the dean comes into a Common Law Court at all, he ought now that the deanery is vacant, to apply for a mandamus to restore him to his office. A prohibition after final judgment cannot be maintained. [Mr. Justice Coleridge.-Can a bishop in an ordinary visitation take a charge on which there may be a deprivation ?] There is no substantive distinction between the visitations. The object in all is to enquire, to punish, and The Attorney General, the Solicitor General, to reform. [Mr. Justice Coleridge-I always Mr. Dundas, Dr. Phillimore, and Mr. Bayley, understood that there was, before the late act, shewed cause against the rule. This applica- a great difficulty in bringing clergymen who tion must be supported, if at all, on the ground had acted in this manner to justice by such either of a total want of jurisdiction, or on an means, but no such difficulty would exist if excess in the exercise of it. Neither one nor your present argument is right.] It is clear the other can be said to be the case here. Be- that the bishop may censure and suspend; if sides, after sentence, either of these objections so, for what time is he to suspend? From to be available, must appear on the face of the Nicholl's Catalogue of Processes in the Reproceedings. They do not appear here. The gistry of the Court of Delegates, it seems that objection made is, that the powers given to the the offences of the clergy must be cognizable commissary were limited and restrained, and at the triennial visitation. But the triennial would not authorize him to entertain a charge visitation does not preclude a visitation of this of simony. Three grounds have been stated sort, which the necessities of the case may refor this application, first, that by the law and quire; and if the party accused will not submit constitution of England an ordinary has no ju- himself to enquiry by his superior, he becomes risdiction on a visitation to take cognizance of guilty of contempt, and may have sentence a charge of simony, and to proceed to depriva-pronounced against him on that ground. A tion on such a charge; secondly, that by the mere defect in the manner of visitation will peculiar constitution of the church of York, the dean of that church is not subject to the visitation of the archbishop; thirdly, that if these proceedings had been lawful before the 3 & 4 Vict. c. 86, the jurisdiction has been by that statute abolished. As to the first of these points it is clear from all the authorities that the jurisdiction now exercised does lawfully

a Edit. 1687, p. 34.
c Tit. Visitor, A. 6;
d Cro. Eliz. 788.
f 3 Dyer, 272 b.

1 Lord Raym. 447,
report); 1 Salk. 134.
i Lord Raym. 5.

k

b 1 Comm. 480. and id. ib. C. • Id. 685.

539

(this is the fullest h 4 Inst. 337. Show. Parl. Cases, 35

12

Superior Courts: Queen's Bench; Queen's Bench Practice Court.

according to that they conceded that in all time to come the archbishop should enquire into all matters of ecclesiastical discipline. This is a case of ecclasiastical discipline. The visitation of Archbishop Frewen occurred in 1662, and the arrangement in William de Melton's composition was not then adverted to, and two persons were then deprived by the commissary. There was another visitation by Archbishop Sterne in 1667; the chapter then claimed the benefit of the composition of De Melton, but the archbishop refused to admit the claim, and the chapter submitted. There was another visitation in 1765, by Sir W. Dawe, who was then archbishop of York, and the composition was again set up, and the claim of the chapter under it again rejected. So that it is clear that in all these cases the composition was treated as of no authority whatever. The commissary has therefore, in this case, properly exercised the power conferred on him by the archbishop; the proceeding is at an end, and on no ground whatever can this application for a prohibition be supported.

In re The Archbishop of York and Dr. Phillimore, T. T. 1841. Q. B. F. J.

[To be continued.]

Queen's Bench Practice Court. ARTICLED CLERK.-ENTRY IN MASTER'S BOOK. The Court permitted an articled clerk to

not affect the whole proceeding, so as to make the dean and chapter and the archbishop, and it void. Bishop of Kildare v. The Archbishop of Dublin. In the Juris Canonici Anglicani,m it is said that in all visitations whatever, the visitor may summon and enquire, though he may not punish, but that the bishop and archbishop, having a general jurisdiction, may enquire and punish. Then as to this particular visitation. It is said on the other side that here there is no cause in Court, and that the visitatorial power of the bishop must be exercised if at all, in a suit in Court. That argument is not well founded. In Ayliff's History of the University of Oxford," the general and extensive powers of an episcopal visitor are fully stated: it is shewn that he may exercise them without a suit in Court, and that in this res. pect there is no distinction between an eleemosynary and an ecclesiastical corporation. Now in the former of these there can be no doubt whatever that a visitor may punish and reform without a suit. And Lord Coke describes the power of the visitor and ordinary in very general and comprehensive terms. [Mr. Justice Coleridge.-Can you bring this case within the right of depriving on visitation by personal presence, without a proceeding in Court, for if you cannot, then they will say on the other side, that there having been no proceeding in Court, the commissary's authority is at end, by virtue of the statute.] The statute was never meant to apply to cases like the present, but only to the ordinary cases of proceedings in the ecclesiastical courts, on matters the subject of suits there. That statute, by the 23d sect., expressly saves the visitatorial power of the bishop. But then it is said that by the peculiar constitution of the cathedral church of York, such a visitation as this cannot be held; and the bull of Pope Celestine is relied on in support of that argument. But after that bull had been promulgated, the statute 28 Hen. 8, c. 62, was passed, and by that statute all bulls of the pope of Rome are declared void, and of no effect in this country. Then the deed called the composition of William de Melton, executed in 1328, is referred to for the purpose of shewing that in this cathedral there is a special exemption of the dean from the visitatorial powers of the bishop. It appears that there had been disputes between the dean and the archbishop relating to their respective rights, and that a composition was executed excepting from the ordinary exercise of the visitatorial power of the archbishop all cases which might lead to deprivation. All other cases were kept under the immediate personal jurisdiction of the archbishop himself; and all that tended to deprivation was to be decided by the dean and chapter themselves. But taking it in its strongest sense, it never could be meant that the dean was never to be subjected to any enquiry. However, it is to be recollected that that composition was never acted on, and in the first year of the reign of Edw. 6, there was a new composition between

make his required entry in the master's book on the first day of term, it not having been entered in due time by one day, in consequence of a mistake of the clerk of the London agent

Montague Smith moved for leave that an articled clerk might be allowed to make his entry required by the rule of Court in the Master's book, it not having, by mistake, been introduced there until Monday, the 1st November, instead of the previous Saturday. The cause of the error was the inattention of the clerk to the town agent of the attorney with whom the clerk had served his articles. The result was, that the strict terms of the rule had not been complied with. As the application was made on the first day of the term, which was prompt, it was hoped that the application would be granted.

Patteson, J., acceded to the application.
Ex parte Griffin, M. T. 1841. Q. B. P. C.

ATTORNEY. ARREST. PRIVILEGE. - AB.
SCONDING.-1 & 2 vicт. c. 110, s. 3.
An attorney who is about to quit England, is
liable to be arrested pursuant to 1 & 2 Vic.
c. 110, s. 3, notwithstanding his privilege.
An attorney, named Moore, had become
indebted to the plaintiff in this action, and it
being supposed that he was about to leave the
country, an application was made for an order
to arrest, pursuant to 1 & 2 Vict. c. 110, s. 3.
The usual affidavit having been made, shewing
that he was about to quit England, an order
for his arrest was made by Mr. Justice Wight-
man, and that writs of capius should issue into

Superior Courts: Queen's Bench Practice Court.-Cause Lists, M. T. 1841.

different countries, in which it was supposed | the defendant was likely to be found and the defendant was accordingly arrested.

A. Wood, now applied on behalf of the attorney, for a rule to shew cause why the order should not be rescinded, and the writ of capias set aside, on the ground of the privilege of the defendant, as an attorney, to be free from arrest.

13

Patteson, J., thought that the defendant, as an attorney, was only privileged from arrest in order that he might attend in court; and not that he might run away from the country. If it was shewn that he was about to quit England, the fact of his being an attorney, did not prevent his arrest pursuant to the statute. Rule refused.-Thompson v. Moore, M. T. 1841. Q. B. P. C.

CAUSE LISTS, MICHAELMAS TERM, 1841.-Lord Chancellor.—Vice Chancellors.
Attorney Gen. v. Haberdasher's | Brinsted v. Payn
Company
Franklin v. Drake

Judgments. Trelaway v. Roberts, V. C. exons. fur. dirs, and costs

Pleas and Demurrers.

V. C. S. Medley v. Horton, de

murrer

V. C. B. Haigh v. Dixon, ditto
V. C. W. Trotter v. Durham
Railway Company, ditto

Re-hearings and Appeals.
Brierley v. Boucher, appeal
Blundell v. Gladstone-Ditto v.
Stoner-Ditto v. Blundell, ditto
Addis v. Campbell, ditto
Peppercorn v. Peacock, ditto
Attorney General v. Wimborne
School, 2 appeals.

Woocock v. Renneck-Ditto v.
Blessett-Ditto v. Sampson,
appeal

Kay v. Holder, ditto
Rowlett v. Rowlett-Ditto
Mozley, ditto

Evetts v. Hall, ditto

Vaughan v. Buck, ditto
Knight v. Frampton, ditto

V.

Michaelmas Term, 1841. uesday, 2d November-Motions Wednesday, 3d November

Causes, Further Directions, and
Exceptions.

Before The VICE CHANCELLOR
OF ENGLAND.

Butcher v. Jackson-Jackson v.

Butcher

Jones v. Jones, fur. dirs. & costs.
Fletcher v. Northcote, exons. 2

sets

Melland v. Gray, exons.

Luckes v. Frost, fur. dirs. & costs
Barnaby v. Filby
Runceman v. Stillwell, fur. dirs.

and costs

Smith v. Pugh

Gwynne v. Lloyd, fur. dirs.
Hughes v. Rogers, fur. dirs. & cs.
Jumpson v. Pitchers-Dawes v.
Jumpson
Costa v. Albertazzi
Dangerfield v. Evans
Prentice v. Phillips

Aft. Tm.-Ward v. Alsager
Aft. Tm.-Ward v. Ward
Browne v. Browne, fur. dirs. and
petition

Jones v. Curlewis

Northwood v. Scrase, fur. dirs. &

costs

London and Greenwich Railway
Company v. Goodchild, exons.
Potts v. Pinnegar
Poole v. Allen

Trulock v. Robey

Jolliffe v. Hector, 2 causes, exons.
fur. dirs.

Attorney Gen. v. Slaughter
Kebell v. Philpott, fur. dirs. & costs
Exchequer Causes.

Before V. C. BRUCE.
Wilcox v. Glaze, fur. dirs. & costs
Seddon v. Prince, exons.
Rogers v. Maule, fur. dirs. and
petition

Christison v. Mayor, &c. of Ber-
wick, exons. 2 sets

Craik v. Lamb

Mayor of London v. Combe
Chambers v. Middleton
Searle v. Colt

Pelham v. Hilder-Thursby v.
Ditto

Plumbe v. Plumbe

Court of Chancery Causes.
Before V. C. BRUCE.

Warner v. Gomme
Horne v. White
Bartlett v. Coleman

Hopkinson v. Bagster, exons.
Robinson v. Rosher

Henslowe v. Lambert-Henslowe
v. Henslowe

Broadhurst v. Balguy

Mousey v. Burenham

Roberts v. Williams

Jessop v. Jessop
Raine v. Cairnes
Lewis v. Adams
Clayton v. Meadows
Wyndham, now Earl of Egre-
mont v. Young
Bruin v. Knott
Jackson v. Mifield
Hart v. Hart
Neesom v. Clarkson
Bowser v. Colby
Tomlin v. Tomlin
Franklin v. Nicholl
Davies v. Powell
Bannister v. Davies
M'Intosh v. Watson
Craddock v. Greenway
Lydall v. Dodd-Dodd v. Lydall
Jones v. Smith

Preston v. Kendall
Pett v. Goodford

Buckworth v. Dashwood

Owen v. Williams

Lloyd v. Wait

Bennett v. Pearce

Before V. C. SHADWELL.
Rand v. M'Mahon
Carr (pauper) v. Barker
Dyball v. Bell

Winkworth v. Marriott
Irving v. Elliott

Wilkinson v. Popplewell, fur. dirs.
& costs

Richardson v. Pierson, ditto
Bingham v. Hallam, ditto
Avarne v. Brown, exceptions

Thornton v. Hinge, fur. dirs, and Cormouls v. Mole

costs
Alder v. Curry
Dryden v. Welford
Cresswell v. Balfour
Higgins v. Higgins
Connop v. Hayward
Morgan v. Nasmith, fur. dirs. &
petition

Moore v. Moore, fur. dirs. and

Sutherland v. Briggs

Tulloch v. Hartley, 2 causes, at Hughes v. Hughes

N.B. For the abated causes, and stand over generally, refer to Trinity Term, 1841.

Edwards v. Hillier

Attorney General v. Elcox
Hutchings v. Batson
Wale v. Moores

Coningham v. Earl Beauchamp-Sloper v. Sloper