A motion by Henry Herbert, in a cause lately depending between Charles James Elphinstone, of Brighton, in the County of Sussex, deceased, - Appellant-and, The Rev. John Purchas, Clerk, - Respondent
| Jurisdiction | UK Non-devolved |
| Judgment Date | 04 June 1870 |
| Court | Privy Council |
| Date | 04 June 1870 |
English Reports Citation: 17 E.R. 7
IN AN APPEAL FROM THE ARCHES COURT OF CANTERBURY.
Mews' Dig. tit. Ecclesiastical Law, XXVIII. Practice and Procedure in Ecclesiastical Matters, 1. Generally. S.C. L.R. 3 P.C. 245; 39 L.J. Eee 124; 23 L.T. 285; 18 W.R. 1073. See Reg. v. Oxford (Bishop of), 1879, 4 Q. B.D. 269.
ELPHINSTONE V. PUECHAS [1870] Vlf MOORE N.S., 17 [17] IN AN APPEAL FROM THE ARCHES COURT OF CANTERBURY. In the Matter of a motion by HENRY HERBERT, in a cause lately depending between CHARLES JAMES ELPHINSTONE, of Brighton, in the County of Sussex, deceased,---Appellant^-and, The Rev. JOHN PURCHAS, Clerk,-Respondent * [June 4, 1870]. In a suit instituted under the Church Discipline Act, 3rd and 4th Viet. c. 86, against a Clerk in Holy Orders, n Minister of a Chapel without a District, by Letters of Request, the Promoter being a Parishioner of the Parish within which the Chapel was situated, for offences against the Laws Ecclesiastical by the use of certain rites and ceremonies set forth in the Articles exhibited; sentence was pronounced by the Arches Court against him upon some, but not on all, of the Articles. The Promoter of the suit appealed from such sentence to 'the Queen in Council, but, after Inhibition and Citation had issued, died. On a motion for the substitution of another Parishioner as Promoter of the appeal, who was not authorized by the Ordinary, or connected with the original Promoter, and had no personal or pecuniary interest in the subject-matter of the suit: - Held, that though the suit, as a criminal suit, had determined by the death of the original Promoter, yet, having regard to the ancient practice of the Court of Delegates in such cases, and the; peculiar circumstances of the suit, it was the duty of the Court of appeal not to permit its abatement, but to allow a proper person to be substituted in the place of the deceased Appellant, and to revive the appeal. Semble, it is not necessary, in such circumstances, that the proposed substituted Promoter should be clothed with the character of one executing the Office of Judge at the instance of the Bishop, whose permission cannot be demanded ex debito justitiae. Quaere, whether it is requisite, on a motion for the appointment of a new Promoter in an appeal under sect. 16 of the Church Discipline Act, that an Archbishop, or Bishop, being a Privy Councillor, should be present to render the Judicial Committee competent to entertain the motion. This was a motion to revive the appeal, and for the substitution of Henry Hebbert of Brighton, in the County of Sussex, as Promoter of the Office of Judge in an appeal from a sentence pronounced by the Dean of the Arches Court of Canterbury, in a cause lately depending in that Court, promoted by Charles James Elphinstone, of Brighton (who died [18] pending the appeal) against the, Rev. John Purchas, Clerk, the Perpetual Curate or Minister of the Church or Chapel of St. James's, at Brighton. 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 f u rther 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, [19] the Promoter and Appellant, died on the 30th of that month, * Present: The Archbishop of York, Ix rd Cairns, Sir James William Colvile, and Sir Robert Phillimore (Judge of the Admiralty Court), 7 VII MOORE N.S., 20 ELPHINSTONE V. PURCHAS [1870] 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 Hebbe-rt 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 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 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 ; [20] 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...
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