J. C.

of the Office of Judge in an appeal from a sentence pronounced 1870 by the Dean of the Arches Court of Canterbury, in a cause lately ELPHINSTONE depending in that Court, promoted by Charles James Elphinstone, of Brighton (who died pending the appeal) against the Rev. John Purchas, Clerk, the Perpetual Curate or Minister of the Church or Chapel of St. James, at Brighton.

v.

PURCHAS.

The cause was promoted in the Arches Court by Letters of Request from the late Lord Bishop of Chichester, and by the Articles, as admitted, the Rev. John Purchas was charged with various offences against the Laws Ecclesiastical.

Purchas did not appear, and the proceedings were carried on by default, and the Judge (The Right Hon. Sir Robert Phillimore), by his decree, pronounced that he had offended against the Laws Ecclesiastical with respect to some of the offences alleged, and admonished him accordingly, and further condemned him in certain costs.

The Promoter, Elphinstone, appealed from this decree upon grounds in his petition of appeal particularly alleged, upon which he complained that the Judge of the Court of Arches had omitted, or declined, to pronounce that the Rev. John Purchas had offended.

The appeal was filed, and the usual Inhibition and Citation issued and served on the Rev. John Purchas and the Registrar of the Arches Court, and were, on the 22nd of March, 1870, filed in the Registry. No appearance was entered by Purchas. Elphinstone, the Promoter and Appellant, died on the 30th of that month, whereupon Hebbert moved to be admitted and substituted as Promoter of the Office of the Judge in the appeal in the place and stead of Elphinstone, and a copy of the case in support of such motion, and notice thereof, having been served on Purchas, he appeared under protest, and denied that Her Majesty had any jurisdiction in the subject matter of the motion, and submitted that Hebbert was not entitled, under the circumstances of the case, to be admitted and substituted as such Promoter.

Affidavits were filed both by Hebbert and Purchas in support of, and in opposition to, the motion. Hebbert stated, that he had resided in Brighton since 1864, and was a member of the Church of England, and that he was well acquainted with the deceased Promoter of the suit; that he understood the particulars of the

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1870

v.

PURCHAS.

proceedings, and was interested therein, and felt that a speedy determination of the important points in question was desirable. He further stated, that he was willing and desirous to take upon ELPHINSTONE himself the further prosecution of the cause, and to be substituted in the place of Elphinstone. He added, that he was for upwards of thirty years in the Bombay Civil Service, and that at the time of his retirement and resignation in 1863 he was one of the Judges of the High Court of Judicature at Bombay. Purchas, in his affidavit, stated that he had not appeared to defend the suit, having no pecuniary means to obtain professional assistance, and that the state of his health rendered it impossible for him to make his defence in person. He alleged, that Hebbert was not in the habit of attending the services at St. James's Chapel, and was not a member of his congregation; that the Chapel had no District assigned to it, and the persons who regularly frequented the services were satisfied with the manner in which they were conducted; and further, that Hebbert was in no way personally aggrieved, and had no interest in the matter, and that he, Purchas, believed the application was made without the knowledge of the present Bishop of Chichester, and also that the Executor of Elphinstone had declined to continue the suit, although pressed and invited by persons who were connected with the proceedings.

On the motion coming on, a preliminary objection was taken by the Appellant's Counsel, Mr. A. J. Stephens, Q.C., and Dr. Tristram, to the constitution of the Judicial Committee, there being no Archbishop or Bishop present, as provided by the 16th section of the Church Discipline Act, 3 & 4 Vict. c. 86; the proceedings in the Court below being taken under that Act, and the decree appealed from, though interlocutory, being in the nature of a definitive sentence. They contended, that if the application for the appointment of a new Promoter of the suit was not granted, the effect would be that the principal cause would stand dismissed, notwithstanding the merits, and the due assertion of the appeal. They suggested, also, that if the constitution of the Committee was informal, a prohibi

* Present :-LORD CAIRNS, SIR JAMES WILLIAM COLVILE, SIR ROBERT PHILLIMORE, and SIR Joseph Napier, Bart.

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1870

June 27.

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ELPHINSTONE

v.

PURCHAS.

J. C.*

1870 July 4.

tion might be applied for against proceeding in the appeal, or against the execution of any Order that might be made thereon.

LORD CAIRNS:

On the part of their Lordships, expressed some doubt as to the necessity of the presence of an Archbishop, or Bishop, on the Committee, the question for immediate decision not being the principal appeal, but a mere motion for the substitution of an Appellant, and the revival of the appeal; but intimated that their Lordships were of opinion, under the circumstances, that the motion should stand over for the attendance of one of the Ecclesiastical Members of the Committee.

The motion, accordingly, was deferred, and now came on for hearing.

Mr. A. J. Stephens, Q.C., and Dr. Tristram, in support of the motion :

This is a question which, as regards as well the interests of the Church as the administration of justice in Ecclesiastical Courts, is of very grave importance. The cause has abated by the death of the Appellant, the original Promoter of the suit. An appeal having been asserted, and the usual Inhibition and Citation issued, the Court below has lost all control of the cause, and this Tribunal alone has cognizance of it. In Ecclesiastical causes the appellate Tribunal has original as well as appellate jurisdiction; whatever, therefore, the Court below might do in such circumstances, this Committee may. It is virtually an abatement of the appeal, and in such circumstances this Court, even though the cause be in the nature of a criminal proceeding, has revived the appeal by permitting a new Promoter: The Dean of Jersey v. The Rector of- (1). There, in a criminal proceeding by a deceased Dean against a Clerk in Orders, the appeal was revived, and allowed to be prosecuted by his Official successor. So in Liddell v. Beal (2), the substitution of a new Churchwarden in the place of the one who was * Present:-THE ARCHBISHOP OF YORK, LORD CAIRNS, SIR JAMES WILLIA M COLVILE, and SIR ROBERT PHILLIMORE.

(1) 3 Moore's P. C. Cases, 229.

(2) 14 Moore's P. C. Cases, 1.

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by

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PURCHAS

the original Promoter of the suit, was ordered by this Committee.
Now, the proceedings in this case are for the benefit of the Church,
to enforce uniformity of practice in its public worship. The present ELPHINSTONE
suit in Ecclesiastical law is a Criminal suit, but the Promoter or Pro-
secutor of the suit has no personal interest; though if he had, the suit
would not be determined, for, by analogy to the Criminal law, as it is
laid down in Chitty's Criminal Law, vol. i. p. 2 [2nd Ed.], "though
the original Prosecutor die, the proceedings will not be defeated
in a case of libel, or assault, or other injury of a private nature,
because they are professedly instituted, not for the satisfaction
of wrongs to individuals, but for furtherance of public justice," and
he cites Rex v. Ellers (1), where it was held, that a person indicted
for insulting a Justice of the Peace shall not be discharged from
the prosecution, although the Justice be dead. The same prac-
tice prevails in the Court of Chancery in proceedings by the
Attorney-General at the information of a Relator. If the Relator
dies, a new one in his place is, as of course, appointed: Mit-
ford on Pleading, p. 100. So, where a Relator in a quo war-
ranto being absent, and unable to enter into the recognizances
required by the Statute, 4 & 5 W. & M. c. 18, s. 2, another
Relator may be appointed: Rex v. Quayle (2). The promotion of
the office of Judge in Ecclesiastical causes is founded on the Canon
Law, and has been adopted in lieu of the ancient form of proceed-
ing by Inquisition: Ayliffe's Parergon, p. 396; Archdeacon Hale's
Precedents in Criminal causes illustrative of the discipline of the
Church of England, p. lviii.; Cockburn's Clerk's Assistant, p. 102.
There is no reported case in point, so we must look to the records
of Ecclesiastical causes for precedents; and to the Court of Dele-
gates, the Court of appeal in such causes since the Reformation,
to furnish a guide for the practice. There are no regular reports
of cases before the Delegates, but in a Parliamentary return of
appeals in causes of Doctrine or Discipline made to the High Court
of Delegates, from its erection by the Statute, 25 Hen. 8, c. 19,
A. D. 1533, until its abolition by the Statute, 2 & 3 Will. 4, c. 92, in
1832 (3), several instances are to be found of suits and appeals abated
and revived, both in the Arches Court and the Court of Delegates,
(1) 1 Wils. 222.
(2) 9 Dowl. 548.

(3) Records collected by Mr. Rothery, Registrar; Parl. Papers, 3rd April, 1868.
VOL. III.
3

U

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ELPHINSTONE

v.

PURCHAS.

which this Court now represents, by the substitution of a new
Promoter in the place of the original Promoter. Thus in 1808, in
a suit in the Arches Court against Churchwardens for making altera-
tions in the Parish Church, promoted by the Mayor of Dover, who,
it appeared, died while the suit was pending, the Court admitted the
successor of the Mayor to prosecute the cause (1), so in a criminal
prosecution for defamation, the original Promoter, Hobday, having
died pending the appeal to the Arches Court, it was contended on
the part of Jackson, the Respondent, that the suit had died with
the Promoter, but his Widow and Executrix was made a party in
his stead, by Order of that Court: Hobday v. Jackson, 1667 (2).
Again, in Thorpe v. Plaxton (3), where a suit was brought in the
Consistory Court of York, for correction of a Clerk for drunken-
ness and neglect of duty, it appears, that after appeal to the
Court of Delegates the Promoter died, and upon objection being
taken that Court assigned the cause for hearing (ad informandum
in jure) on the legal question, "whether by Law the office of
Ordinary has not such a concern in all prosecutions of a spiritual
nature, that a proper Promoter may be permitted on any emergency
to carry on the cause, either in the first instance or on appeal.”
This was in 1730, and is the very question here; but it does not
appear to have been solemnly determined, for the Inhibition on
appeal was relaxed, on the ground, as it is stated, that the Pro-
moter had died before the Inhibition and Citation were returned.
The opinion of the Court of Delegates is, however, sufficiently
apparent from the course taken by them. So in Sharpe v. White,
in 1626 (4), which was also an appeal to the Delegates, it appears
that while the cause was pending before the Delegates, White,
the Respondent and original Promoter, died, and one Robert Evans,
his Executor, applied to be admitted in his stead. The application
was opposed by Sharpe's Proctor, who contended, that Evans had
no interest in the cause, but the objection seems to have been
overruled, and the Court afterwards pronounced sentence in the
cause. That is a case directly in point. In Wilson v. Hancock,
in 1671 (5), the original Promoter in the cause having refused to
proceed further after appeal to the Arches Court, a new Promoter
(1) Records collected by Mr. Rothery,
Registrar; Parl. Papers, No. 183, p. 92.
(2) Ibid. No. 54,
P. 24.

(3) Ibid. No. 150, p. 73.

(4) Records collected by Mr. Rothery, Registrar; Parl. Papers, No. 28, p. 11 (5) Ibid. No. 66, p. 30.