Hebbert v Rev. Purchas

JurisdictionUK Non-devolved
Judgment Date25 July 1872
Date25 July 1872
CourtPrivy Council

English Reports Citation: 17 E.R. 208

IN THE MATTER OF THE PETITIONS OF PURCHAS FOR THE REHEARING OF THE APPEAL.

Henry Hebbert,-Appellant; The Re
and
John Purchas,-Respondent 1

Mews' Dig. tit. Ecclesiastical Law; XVIII. Practice and Procedure; 9. Appeal. S.C. L.R. 3 P.C. 664; 40 L.J. Ecc. 55. See Venkata Narasimha Appa Row v. The Court of Wards, 1886, 11 App. Cas. 664, and cf. Rajunder Narain Rae v. Bijai Govind Sing, 1836, 1 Moo. P.C. 117; Montreal Assurance Co. v. M'Gillivray, 1859, 13 Moo. P.C. 125; The Singapore v. The Hebe, 1866, 4 Moo. P.C. (N.S.) 285; M'Leary v. Hill, 1868, 6 Moo. P.C. (N.S.) 367; Ex parte Kisto Nauth Roy, 1869, 6 Moo. P.C. (N.S.) 360. For previous and subsequent proceedings, see note to last preceding case at 7 Moo. P.C. (N.S.) 551.

VII MOOEE N.S., 552 HBBBEKT V. PURCHAS [1871] IN THE MATTER OF THE PETITIONS OF PURCHAS FOR THE REHEARING OF THE APPEAL. HENRY HEBBKRT-Appellant; THE REV. JOHN PURCHAS,-Respondent * [March 25, 1871]. After judgment had been delivered by the Judicial Committee, but before their report and recommendation had been presented, or any Order made thereon by Her Majesty in Council, the Respondent presented two Petitions addressed to Her Majesty in Council, stating that the appeal had been heard ex parte by reason of his want of pecuniary means to employ Counsel, and his own inability to argue the case; and that (as he alleged) the judgment of the Judicial Committee in the appeal was at variance with former decisions of Judicial Committee; he prayed for a rehearing of the appeal, and that no report or recommendation might be made thereon to Her Majesty until such rehearing had been had. Both Petitions having been specially referred by Her Majesty to the Judicial Committee, their Lordships, after hearing Counsel, declined to entertain the matter of the Petitions, or to allow any doubt to be thrown on the finality of the decisions of the Judicial Committee; and dismissed the Petitions with costs. Before the report of the opinion and judgment of their Lordships in the above appeal had been presented to Her Maj.esty in Council, or any Order made in accordance with the advice and recommendation of their Lordships' judgment, a Petition, dated [552] the 15th of March, 1871, was presented by the Respondent, addressed to Her Majesty in Council, which stated that the Petitioner was disabled, by want of necessary pecuniary means, from incurring the expense of a defence by Counsel, on the hearing such appeal; and that the state of his health, and his own incompet-ency to cope with Counsel, prevented him from venturing personally to undertake to sustain the judgment of the Dean of the Arches; that the appeal was thus heard without any opposing arguments on the various important points raised; and, therefore, that the report of the Judicial Committee on those important points, from the necessity of the case, must be submitted to Her Majesty upon an ex parte hearing only. That, as he stated, the result of these circumstances was, that the opinion of the Judicial Committee had been pronounced, with regard to the main particulars, in favour of the Appellant, in contradiction, as he, the Petitioner, was advised, in one essential point, to the decision of the Judicial Committee in the case of Westerton v. Liddell. That so grave were the consequences of the decision in the case to which the Petitioner was a party, and so deep and painful an interest had, as he submitted, it excited amongst a very large body of Clergy and Laity of the Church of England, that, being now unexpectedly enabled to take upon' himself the expense of employing Counsel on his behalf, which at the time of the hearing he was unable to do, and being, as he alleged, most anxious for the sake of himself and others that a full and complete discussion should be had of the several points raised by the appeal, he prayed that Her Majesty would not adopt th_, recommendation of the Lords of the Judicial Committee [553] in the case, until an opportunity had been afforded to the Petitioner of having the case reheard, in order that he might be duly represented by'Counsel upon such rehearing, and a full and satisfactory discussion might be had on the several points raised by the appeal. On the 17th of March, 1871, an appearance for the first time was entered on behalf of the Respondent, in Her Majesty's Court of appeal, in the original appeal. This Petition having been set down for the hearing before the Judicial Committee, * Present: The Lord Chancellor (Lord Hatherley), the Bishop of London (Dr. Jackson), Lord Chelmsford, Lord Westbury, Lord Cairns, and Sir James William Colvile. 208 HEBBERT V. PURCHAS [1871] VII MOORE N.S., B64 notice was issued from the Privy Council Office for the Petitioner to appear before the Committee, as upon the hearing of an ordinary petition. The Solicitor-General (Sir John D. Coleridge, Q.C.), with whom was Mr. C. Bowen, on behalf of the Petitioner, took a preliminary objection to the competency of the Court to entertain the Petition, He submitted, that the Petition was not a Petition in the appeal addressed to the Judicial Committee, but a Petition for a rehearing addressed to the Queen in Council, and that unless such Petition was referred by Her Majesty to their Lordships by a special Order in Council, in accordance with the provisions of the Judicial Committee Act, 3rd and 4th Will. 4, c. 41, sec. 4, the Judicial Committee, being only a Statutory Court, had no authority, and that the case was, in fact, as regarded the Tribunal then sitting, coram non juAice. He submitted, that the Petition being addressed to the Queen in Council, was not a proceeding in the appeal then lately before the Judicial Com-[554]-mittee, so as to bring it within the provisions of the Statute, 7th and 8th Viet. c. 69, s. 9, and obviate a special reference; that the Petition for a rehearing having been presented to Her Majesty in Council, involved an appeal, not to the Judicial Committee against their own report or judgment, but to the discretion and prerogative of the Crown. He further submitted, that Her Majesty, if so advised, might refer the Petition to this, or any other section of the Judicial Committee, but until such reference had been specifically made, the Judicial Committee could have authority to proceed, or take cognizance of the matter of the Petition, and advise Her Majesty, under the circumstances, that a further hearing ought or ought not to take place. The Lord Chancellor intimated the opinion of their Lordships, that, as it was insisted there was no Petition for a rehearing before them, it was unnecessary further to discuss the matter. On the 29th of March, 1871, Mr. Purchas presented another Petition to Her Majesty in Council, in which he stated, in effect, that he had, at the hearing of the last Petition, for the first time discovered that no special Order had been made by Her Majesty referring his Petition for a rehearing of his original appeal to the Judicial Committee; that he was advised by Counsel, that to proceed with any motion before the Judicial Committee until a special Order of reference had been made by Her Majesty in Council in the matter of his Petition, might be to his prejudice; that [555] accordingly no motion for a rehearing was made on the day named in the aforesaid notice, the Petitioner's Counsel informing their Lordships of the reasons why it was thought necessary to abstain from any such motion; and the Petitioner urged in favour of the rehearing of his case the grounds before stated by him ; and further, that if the draft report or recommendation, as delivered and proposed by the Committee, were made and adopted by Her Majesty, the Petitioner would be condemned in a Criminal suit with heavy costs for doing what, he was prepared to submit, was not illegal; and he prayed, in effect, that the appeal of Hebbert v. Purchas might be reheard before the Judicial Committee, and that until such rehearing had been had, their Lordships might abstain from making to Her Majesty any report or recommendation in the matter of appeal, or any report thereof be received or adopted by Her Majesty; and that he might be heard by Counsel upon the matter of both Petitions presented by him. This Petition, together with the former one of the 15th March, 1871, having been specially referred by Her Majesty to the Judicial Committee to report thereon, now came on for hearing (April 26, 1871 *). The Solicitor-General (Sir John D. Coleridge, Q.C.), the Admiralty Advocate, Dr. Deane, Q.C., and Mr. C. Bowen, in support of the application.-The opinion and judgment of the Judicial Committee on an appeal referred to them is not necessarily [556] a final judgment; it is competent, we apprehend, to the Committee to reconsider the case, especially when no report or recommendation has been made thereon * Present:-The Lord Chancellor (Lord Hatherley), the Archbishop of York (Dr. Thomson), the Bishop of London (Dr. Jackson), Lord Chelmsford, Lord West-bury, Lord Cairns, Sir James William Colvile, the Lord Justice James, and the Lord Justice Mellish. 209 VII MOORE N.S., 657 HEBBERT V. PUECHAS [1871] to Mer Majesty in Council. The Judicial Committee is constituted, and its jurisdiction defined, by Statute, 3rd and 4th Will. 4, c. 41, which limits the power of the Committee simply to advising the Crown. By the 2nd and 3rd Will. 4, c. 92, s. 2, the High Court of Delegates was abolished and its powers transferred to the Queen in Council. The 3rd section declares, " that every Judgment, Order, and Decree to be made by the King's Majesty, his Heirs and Successors, shall have such and the like force and effect in all respects whatsoever as the same respectively would have had if made and pronounced by the High Court of Delegates; and that every such Judgment, Order, and Decree shall be final and definitive, and no Commission shall thereafter be granted or authorized to review any Judgment or Decree to be made by virtue...

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