Sect. 13. Bishop em powered to inhibit party accused from performing services of the church, &c. The service of notice of the intention to issue a commission by the bishop, but upon which no commission issues, will not preclude the bishop from sending the case to the Court of Appeal by letters of request in the first instance. (b) In Flamank v. Simpson (c) Dr. Lushington gave leave to appeal from an interlocutory order, for the reason that if he had decided wrongly a reversal would put a stop to the whole proceeding. Section 14. [3 & 4 Vict. c. 86.] "That in every case in which, from the nature of the offence charged, it shall appear to any bishop within whose diocese the party accused may hold any preferment that great scandal is likely to arise from the party accused continuing to perform the services of the church while such charge is under investigation, or that his ministration will be useless while such charge is pending, it shall be lawful for the bishop to cause a notice to be served on such party at the same time with the service of a copy of the articles aforesaid, or at any time pending any proceedings before the bishop or in any Ecclesiastical Court, inhibiting the said party from performing any services of the church within such diocese from and after the expiration of fourteen days from the service of such notice, and until sentence shall have been given in the said cause provided, that it shall be lawful for such party, being the incumbent of a benefice, within fourteen days after the service of the said notice, to nominate to the bishop any fit person or persons to perform all such services of the church during the period in which such party shall be so inhibited as aforesaid; and if the bishop shall deem the person or persons so nominated fit for the performance of such services he shall grant his licence to him or them accordingly, or in case a fit person shall not be nominated the bishop shall make such provision for the service of the church as to him shall seem neces (b) Head v. Sanders, 2 Curt. 32, 565; 4 Moo. P. C. C. 186. sary; and in all such cases it shall be lawful for the bishop to Sect. 14. may be. Section 15. "And be it enacted, That it shall be lawful for What appeals any party who shall think himself aggrieved by the judgment pronounced in the first instance by the bishop, or in the Court of Appeal of the province, to appeal from such judgment; and such appeal shall be to the archbishop, and shall be heard before the judge of the Court of Appeal of the province, when the cause shall have been heard and determined in the first instance by the bishop, and shall be proceeded in in the said Court of Appeal in the same manner and subject only to the same appeal as in this Act is provided with respect to cases sent by letters of request to the said court; and the appeal shall be to the Queen in Council, and shall be heard before the Judicial Committee of the Privy Council when the cause shall have been heard and determined in the first instance in the court of the archbishop." Under this section an appeal lies to the Court of Arches from a judgment of a diocesan court presided over by the Archbishop of Canterbury, under section 24 of the same Act, in consequence of the bishop of the diocese being the patron of the preferment held by the party proceeded against. (d) Section 16. "And be it enacted, That every archbishop and bishop of the United Church of England and Ireland, who now is or at any time hereafter shall be sworn of Her Majesty's Most Honourable Privy Council, shall be a Member of the (d) Reg. v. Judge of the Court of Arches, 7 E. & B. 315; 26 L. J. (Q. B.) 178. Appeals from Diocesan Archbishops members of the Privy Council, and bishops, to be members of the Judicial Committee on Sect 16. all appeals under this Act. Attendance of witnesses, and production of papers, &c. may be compelled. Witnesses to be examined on Accused is liable to give evidence. Judicial Committee of the Privy Council for the purposes of every such appeal as aforesaid; and that no such appeal shall be heard before the Judicial Committee of the Privy Council unless at least one of such archbishops or bishops shall be present at the hearing thereof: provided always, that the archbishop or bishop who shall have issued the commission hereinbefore mentioned in any such case, or who shall have heard any such case, or who shall have sent any such case by letters of request to the Court of Appeal of the province, shall not sit as a member of the Judicial Committee on an appeal in that case. Section 17. "And be it enacted, That it shall be lawful in any such inquiry for any three or more of the commissioners, or in any such proceeding for the bishop, or for any assessor of the bishop, or for the judge of the Court of Appeal of the province, to require the attendance of such witnesses, and the production of such deeds, evidences, or writings, as may be necessary; and such bishop, judge, assessor, and commissioners respectively shall have the same power for these purposes as now belong to the Consistorial Court and to the Court of Arches respectively. Section 18. And be it enacted, "That every witness who shall be examined in pursuance of this Act shall give his or her evidence upon oath, or upon solemn affirmation in cases where an affirmation is allowed by law instead of an oath, which oath or affirmation respectively shall be administered by the judge of the court or his surrogate, or by the assessor of the bishop, or by a commissioner; and that every such witness who shall wilfully swear or affirm falsely shall be deemed guilty of perjury." The accused is himself competent and compellable to give evidence. (e) The Privy Council have decided that one witness is now (e) Bishop of Norwich v. Pearse, L. R. 2 Adm. & Eccl. 281; Martin v. Mackonochie, L. R. 3 P. C. 52. sufficient to establish a charge, but in the case in question they Sect. 18. required some corroboration. (f) Act not to interfere with persons insti tuting suits to establish a civil right. Section 19. "Provided always, and be it enacted, That Provisions of nothing hereinbefore contained shall prevent any person from instituting as voluntary promoter, or from prosecuting, in such form and manner and in such court as he might have done before the passing of this Act, any suit which, though in form criminal, shall have the effect of asserting, ascertaining, or establishing any civil right, nor to prevent the archbishop of the province from citing any such clerk before him in cases and under circumstances in and under which such archbishop might, before the passing of this Act, cite such clerk under and in pursuance of a statute passed in the twenty-third year of the reign of King Henry the Eighth, intituled An Act that no Person shall be cited out of the Diocese where he or she dwelleth, except in certain Cases. 23 Hen. VIII. c. 9. commenced years. Section 20." And be it enacted, That every suit or proceed- Suits to be ing against any such clerk in holy orders for any offence within two against the Laws Ecclesiastical shall be commenced within two years after the commission of the offence in respect of which the suit or proceeding shall be instituted, and not afterwards: provided always, that whenever any such suit or proceeding Proviso. shall be brought in respect of an offence for which a conviction shall have been obtained in any court of common law, such suit or proceeding may be brought against the person convicted at any time within six calendar months after such conviction, although more than two years shall have elapsed since the commission of the offence in respect of which such suit or proceeding shall be so brought." Upon the construction of this section it has been held that the suit or proceeding was not commenced by the issuing of a commission, nor by the report made by the commissioners, nor by the filing of articles in the name of the bishop of the diocese (f) Bishop of Norwich v. Berney, 36 L. J. Eccl. 8. The period of two years dates from the ser vice of the citation. Sect. 20. Flamank v. Simpson. 27 Geo. III. c. 44 not to apply to suits against spiritual per offences. in which the alleged offence was committed, and service of the same on the accused, but first, that the suit or proceeding only commenced when the accused was served with a citation to appear at a certain time and place before a competent court to answer definite charges, as required by sections 9 and 10, and secondly, that the limitation of two years, within the meaning of section 20, was to be reckoned from the time of the service of the citation. (g) In a commission appointed by a bishop under the Church Discipline Act, to inquire into charges against a clergyman, it was not directly alleged that the offences had been committed within two years then last past, but the charges were laid in the present tense, viz. that Mr. S. has lights on the Communion Table, &c. The commissioner overruled an objection taken to this wording of the charges, and found on evidence that there were sufficient grounds for proceeding. Letters of request were then sent up to the Court of Arches. Thereupon the decree was issued, setting forth the charges in the same words as in the commission. The articles filed specified that the offences had been committed within two years. An objection was raised to the admission of the articles, on the ground of the words "within two years" being omitted in the commission and decree. It was held by both the Dean of Arches and the Privy Council that the statute was satisfied, as the charges being laid in the present tense necessarily implied that the offences continued up to the time of issuing the decree. (b) Section 21. "And be it declared and enacted, That the Act passed in the twenty-seventh year of the reign of his late Majesty King George the Third, intituled An Act to prevent frivolous and vexatious Suits in the Ecclesiastical Courts, does not and shall not extend to the time of the commencement of (g) Ditcher v. Denison, 11 Moo. P. C. C. 324; Brookes v. Cresswell, 10 Jur. 647; Bishop of Hereford v. T, 2 Rob. Eccl. 595. (h) Flamank v. Simpson, L, R. 1 Adm. & Eccl. 276, L. R. 1 P. C. 463. |