Gorham v The Bishop of Exfter
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1850 |
| Date | 01 January 1850 |
| Court | Exchequer |
English Reports Citation: 155 E.R. 276
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S C 19 L J Ex 376, 14 Jur 876 in Queen's Bench, 15 Q B 52, 19 L J Q B 279, 14 Jur 480 in Court of Common Pleas, 10 C B 102, 19 L J C P 200, 14 Jur 52 For proceedings in Privy Council see Moore's Special Report
in the matter of gorham v the bishop of exfter 1850 -LTndei the 25 Hen 8, c 19, an appeal lay from the Archbishop's Court to the Delegates in all spiritual causes, whethei touching the King or not, and, theiefore, by the 2 & 3 Will 4, c 92, theie is now an appeal, in such cases, to the Judicial Committee of the Privy Council, whose decision is hnal -Semble, that the 9th section of 24 Hen 8, c 12, which in matters touching the King, gives an appeal from certain Ecclesiastical Courts to the Upper House of Convocation, is repealed by J the 25 Hen 8, c 19 -queeib-Whethei a proceeding by duplex qnerela is a "matter touching the King" within the '24 Heri 8, c 12, s 9 [HjC 19 L J Ex 376, 14 Jur 876 in Queen's Bench, 15 Q B r 2, 19 L J Q B E79, 14 Jijr 480 in Court of Common Pleas, 10 C B 102 , I() L J C P 200, |4 Jur 522. For proceedings in Privy Council see Mooie's Special Repoit] Sir F Kelly, in last teim, (June 6,) obtained a rule, calling on sh Herbert Jenner Ft(st, Knight^ Dean of the Arches, and Official Principal of the Arches Court of (c) Aklersoii, B , Holfe, B, and Platt, B 8 EX 631 IN RE OORHAM '(' THE BISHOP OF EXETER 277 Canterbury, aud the Atchbishop of Canteibuty, to bhew cause why a wilt of prohibition should not issue, to piohibitthem and each of them from admonishing, ot requiring by monition, citation, 01 otherwise, Heiny Lord Blbhopof Exetei, Ralph Batneb, Gent , the secretary of the said bishop, and deputy registrar of tharprmcipal registry of the diocese of Exetei, ot any othei officer of the said bishop, [631] 01 of his epibtopal or consistoual couit, 01 from proceeding to enforce 01 give effect to any monition, citation, 01 Othei process requiring the said bishop or othcers aforesaid to transmit 01 cause to be transmitted to the registi}' of the , aid Aicbes Court 01 elsewhere, the letters ot presentation of her Majesty, under the Great Seal, bearrng date the 2nd of November, 1847, addies=bed to the said Lord Bishop of Exetei, and presenting the Uev George Cornelius Gotham, clerk, for admission, institution, and induction, by or undei the authority of the said bishop, to the \icarago of Biampford Speko, in the county of L)&\on and in the diocese of Exetei , and also to prohibit the said Sn Ilcrbeit Jenner FuBt and the said Archbishop of Canteibury, and each of them, from admitting, instituting, or inducting, or authorising the admission, institution, or induction of the said Geoige Cornelius Gorharn to the sard vicarage, 01 otherwise obseivmg, complying with, or in any way proceeding to give effect to or carryrng into execution a certain order of her said Majesty in Council, on 01 about the c)th of Maich, IcSnO, upon a certain report or recommendation of the Judicial Committee of the -Privy Council, rn a certain cause or alleged c uise of appeal from the judgment of the baid Arches Court in a suit of duplex queiela between the said George Cornelius Gotham, cletk, and the said Loid Bishop of Exetei, and which said leport or recommendation was made to hei said Majesty by the .said Judicial Committee of the Pi ivy Council on or about the 8th ot March, 1850 The affidavits in suppor b of the application stated the following facts -The vicarage of Brampford Speke, in Devonshne, is a benehce wrth cure of oouls rn the diocese of Exetei The patronage and light of presentation belong to the Queen, who, in right of her Crown, is seised in fee of the advowson as one in gross On the Jrd of March, 1847, the vicarage became void by death , and on the 2nd of November, 1847, the beaietice remaining so void, the [632] Queen, as pation, in light of the Crown, did, by letters patent of that date, present to the Brshop of Exeter the lieverend Geoige Cprnelius Gotham as her Majesty's cleik, appointed to the said vicatage, commanding thje bishop to admit the said G C Gotham thereto, and to institute, induct, and invest bun, and do all other rnatteis concerning the admission, institution, and induction which to the bishop's pastoral office belonged The bishop, by his affidavit, stated, that he as such bishop as aforeaaid is the ordinary, and hath full ecclesiastical and spiritual juiisdiction in and over the said vicaiage and the vicar thereof foi the time being, and that, as such bishop and ordinary, he has full and sole light and authority by law to admit, institute, and induct, or to authorise the admission, institution and induction of, each and eveiy person from time to time presented by her Majesty, as such patron as afoiesaid, for admission &c into the said vicarage as the vicai thereof, and that, before bitch admission &c , he, as such bishop and ordrnary, has also the full and sole right andauthouty by law, and it is moreover his bounderi duty and obligation, to examine the pet son so piesentecl, and to ascei tain and determine, as the spiritual judge, the fitness and qualifications of such person for such admission &c, with reference as well to his faith and dpctune as to his learning, moials, ability, and sufficiency, accordrng to the laws ecclesiastical of this lealm , and in the event of his finding and deteimining, upon such examination, that the person so presented is unfit or disqualified, by leason of his insufficiency in any of the matteis aforesaid, then to refuse to admit, institute, ot induct such person That, on the piesentation by hei Majesty of the said G C Gotham, and after tempt of the said letters patent, the bishop, as such bishop and ordinary, òlecording tn his said tight and duty in that behalf, examined the said G C Gorham, Hi ordei to ascertain and deteimine whether he was fit and qualified, accotdmg to the laws ecclesiastical of this realm, to be admit-[633]-ted &c to the said vicarage, and that upon such examination deponent ascertained and detei mined, accoidmg to his (ionscientious judgmentand belief, that the said G C Gotham drd then hold, maintain, 4nd affirm certain unsound docttines and opinions, contrary to the true chnstian faith, jnd contrary to and inconsistent with the doctrines of the Church of England, the Thirty nine Aiticles of Religion, and the Book of Common Pi ay ei, authorised and injoined by the Act of Uniformity (U & 14 Cai 2, c 4), and that, by leason and in 27$ IN RE GORHAM V THE BISHOP OF EXETER 5 EX 634 consequence of the said G C Gotham so holding, maintaining, and amiming such doctrines and opinions, the deponent as such biahop and ordinary did then adjudge and determine that the said G C Gorham was, as the deponent atill believes him to be, a person unfit and unqualified to be admitted &c to the said vicarage , and that suc|i holding, maintaimrqjf and affirming such doctnnes and opinions as aforesaid was a lawful and sufficient cause foi the deponent's lefusing to admit &c the said G C Gorhara to the said vicarage , and, by reason thereof, the deponent, as such bishop, &c thereupon refused to admit the said G C Goiham to the said vicarage, or to institutef induct, or invest him &o The bishop gave notice to her Majesty of his refusal, and in Trinity Teim, 1848, the, said G C Goiham commenced a suit of duplex queiela against the bishop in the Arches Court of Caiiteibuiy (2 fiob Eccl Cas 1), such suit being in the nature of an apppal from the said judgment and determination of the bishop as such bishop and ord naiy The suit was heaid by the Dean of the Arches and Ofticial Principal, Sir Herbert Jennet Fust, and on the 2nd of August, 1849, he gave judgment, that the saie G C. Goiham did hold and maintain such unsound doctnnes and opinions as afoiiesaid, and that, by reason thereof, he was unfit and unqualified to be [634] admitted &c to the said vicarage , and that the bishop had shewn sufficient reason foi refusing to admit, &c and the defendant was dismissed with costs The said G C Goiham appealed from that judgment to the Queen in Council, and petitioned hei Majesty, "that the said judgment might be reversed and annulled , and; that the said G C Gorham might be declared to be fit and qualified to be, and miglit be, admitted, &c to the said vicaiage" Her Majesty lefeiied the petition to the Judicial Committee, and they heard counsel on both sides on the petition, and on or $bout the 8th of March, 1850, reported to the Queen that the judgment of Sir Herbert Jerinei Fust ought to be reversed, and that it ought to be declared that the bishop had not shewn sufficient cause why the said G C Goiham should not be adn.itted, &c ; and that the principal cause ought to be remitted to the Court of Arches, in order that nght might be there done The Queen, by ordei in Council, 9th of Match, 1850, approved of the tepoit, and duajeted that it should be carried into execution In pursuance of tlr.it order, the cauie was remitted to the Arches Court, and the Official Principal, in order to cany the (recommendation of the Judicial Committee of the Privy Council into effect, caused theiregrstrar of the Eprscopal Couit to be served with a monition to return into the Aiches Court the letteis patent by which the said G C Goiham was presented to the bishop for admission, &c A copy of the monition was also served upon the bishop, who now deposed that he was informed and believed, that the last-mentioned Ordjer in Council was about to be enforced, and the admission to take place, unless a pro |iibition wer e granted The bishop's affidavit also stated, that since the hearing of the said appeal by the said Judicial Committee, he had been advised by counsel that the said G C Goiham \vasi not entitled to appeal from the said judgment of the Arches Couit to the Queen in (jouncil, not had her Majesty powei [635] 01 authority by law to refer...
To continue reading
Request your trial
-
Hitchins v The Kilkenny and Great Southern and Western Railway Company, Re Emery
...granted a rule to shew cause, which, after a very elaborate argument, and time taken for deliberation, was discharged, with costs. See 5 Exch. 630, 10C.B.161- HITCHIN8 V. THE KILKENNY RAILWAY CO. 67 then paid up : provided always that no such execution shall issue against any shareholder, e......
-
Barnard, one, &, and 6 & 7 Vict. c. 73. ex parte Wetherell
...was granted by the Exchequer, when I had the honour of being a Judge of that Court. It was the first Court which granted the rule nisi (5 Exch. 630). So with regard to the well-known case of the Canadian prisoners, upon the return of the habeas corpus the prisoners were remanded by one Cour......
- Ex parte the Bishop of Exeter, Re Gorham v The Bishop of Exeter