Abbildungen der Seite
PDF
EPUB

HAYES

V.

REID.

E. T. 1848. parte Halkett (a), which seems to imply the contrary, is quite
Queen's Bench.
Denn unsupported by the case; and the dicta in Hussey v. Christie (6),

in Chancery, are overruled by the same case in the Queen's Bench:
9 East, 426. Here not only does the libel not state any instrument
of hypothecation, but the existence of any such is negatived. There-
fore there being no lien created, this is a case for a prohibition, if
the application is not improperly framed.

We were not bound to plead below; for the moment a Court, not proceeding according to the Common Law, has exceeded its jurisdiction, or is about to do so, the subject has a right to come to this Court: Roger's Eccles. Law, p. 746; Prac. Reg. pp. 438, 439, 440. Here the ship has been seized. Even if an appearance below was necessary, we have an appearance entered, though it is under protest; but it was received by the Court.—[CRAMPTON, J. An appearance below is not an answer to the suit, but merely for the purpose of jurisdiction.]—If on the face of the proceedings, as here, it appears that the Court of Admiralty have not, and cannot have, jurisdiction, it is the duty of the Queen's Courts at any stage of the proceedings to interfere. Here the libel discloses a case of personal contract between the master and the supplier of the ship not amounting to an hypothecation.—[PERRIN, J. They say the libel does not show that the matter was within the body of England. ]— It does; but if not, the suggestion is quite sufficiently made by affidavit of a want of jurisdiction, without putting it on the record of the Court below.

Hayes, in reply.

Ireland as to England is a foreign country, and therefore the Court of Admiralty has jurisdiction. The Court of Admiralty in England, proceeding in rem, not in personam, would, according to the Common Law, have been entitled to issue its warrant to enforce the lien ; and so, the lien attaching on the vessel by the nature of the contract, by the law of a foreign country, will continue to be enforced : Story's Conflict of Laws, p. 457: “In these and the “like cases, where the lien or privilege is created by the lex loci (a) 3 Ves. & Bea, 135.

(6) 13 Ves. 594.

HAYES

[ocr errors]

contractus, it will generally, although not universally, be respected E. T. 1848. “ and enforced in all places where the property is found, or where “the right can be beneficially enforced by the lex loci.

The plaintiffs here might have adopted one of two courses ; either they might have appeared in the Court below under protest, alleging the grounds of protest, and so have the question disposed of by an argument of those grounds; or, having appeared regularly, they might have opposed the exhibition of the libel by an exception declinatory of the jurisdiction. They have adopted neither of these courses, and now, contrary to the first principles of justice, they call on this Court to prohibit the Court of Admiralty, without having directed the attention of that Court to the objection of the excess of jurisdiction on which they rely.

BLACKBURNE, C. J.

In this case, a prohibition is applied for with the view of asserting a specific right. The proceedings in the Court of Admiralty are in such a state as to enable the plaintiff below to amend his libel, or if he do not do so, the defendant may put forward these matters upon which he relies as ousting the jurisdiction of that Court, but up to this moment that has not been put in a course of trial, and the Judge of the Admiralty Court has no knowledge of the case. We are called on in the first instance to decide this case; that we decline doing, and I think the matter should be submitted in the proper form to the Court below before we interfere.

CRAMPTON, J.

If this were a plain case of want of jurisdiction in the Court of Admiralty, I would feel no difficulty in granting the prohibition as sought; but we are not at liberty to pronounce summarily that the Court has exceeded its jurisdiction, because the applicant does not show in what character he applies. He ought to have appeared in the Court below, and shown by proper pleading the grounds on which he relied for the non-interference of the Court; but he calls on us to assume that that Court will not proceed within the bounds of its jurisdiction : this we cannot do.

E. T. 1848. Per Curiam.
Queen's Bench.

. We refuse the motion without costs, but do not intimate any HAYES

opinion about the question as to whether the Court of Admiralty REID. had jurisdiction.

Cause allowed, without costs.

v.

to re

caus

In the Matter of

WILLIAM GRACE,
Registrar of the Diocese of Ossory,

v.
THE LORD BISHOP OF OSSORY, THE VICAR-GENERAL

of the Diocese, and others. April 19, 27. On an appli- PROHIBITION.-In this case a rule nisi had been obtained that a cation by the Registrar of writ of prohibition should issue to restrain the Lord Bishop of an Ecclesiastical Court for Ossory, and the several other defendants, against further proceeda prohibition

ing in a cause instituted by the proctor's office of the bishop in the Bishop of the diocese "from Diocesan Court of Ossory, for deprivation of William Grace of his taking further proceedings in office of principal registrar of said diocese. The affidavit on which a cause insti

" this order had been obtained set forth letters patent, bearing date his office, he

the 24th of March 1827, appointing William Grace registrar of the convicted of

bishop in all causes and business ecclesiastical whatsoever, and in forgery, and the ordinary and primary visitations, and in all things that should sentenced to transporta- be issued, done or confirmed under the Ecclesiastical Vicar-General tion for seven years; Held, or Official Principals, or Surrogate's seal, and the custody of the that the Court could not en- registry, to hold, occupy and enjoy the same to this deponent, or his tertain such an application, it sufficient deputy or deputies, to be approved of by the bishop, for being made on behalf of a and during the term of the natural life of William Grace, in as ample felon, even though the offence for which be was convicted was not punishable by death. . Held also, that the Ecclesiastical Court had jurisdiction to entertain a suit for his removal.

Semble, a felon cannot act by deputy.

tuted to

move hi

bo

[ocr errors]

GRACE

OSSORY.

a manner as any previous registrar had or ought to have had, or E. T. 1848.

Queen's Bench. might or ought to have had. That this patent was duly confirmed ; that William Grace appointed a deputy in October 1846, and that in the following November proceedings were taken to remove him BISHOP OF from the office.

The affidavit filed by the bishop as cause against this conditional order set forth an indictment, trial, conviction and sentence of transportation for seven years of William Grace, for forgery, and justified Grace's removal from office on that ground.

Gayer, with whom were Francis A. Fitzgerald and E. Pennefather, showed cause against this order.

It is admitted there must be some means of removing the registrar. I admit the office is a temporal office, and that he cannot be removed except for sufficient cause ; but the Ecclesiastical Judge may remove him as his officer for any cause he may consider reasonable. The only course the bishop could follow is by suit in his own Court, where the accused may defend himself. The registrar is an officer of a Court of Justice: Trevor's case (a); Lake v. Prigeon (6). Every Court has a discretionary power over its own officers, and the bishop was therefore bound to look to the conduct of his registrar: Phil. Evid. p. 651 ; In re Kennedy (c); 5 Bac. Abr. p. 211, Office, M. If this act of forgery had been committed on documents connected with the office of registrar, ipso facto that would be a forfeiture of the office at Common Law, and no proceeding would be necessary to displace the officer : The Earl of Shrewsbury's case (d); Vaux v. Jefferen (e); but where the misconduct is not in his office, proceedings must be taken to enable him to justify: Regina v. Smith (f). Suits in Ecclesiastical Courts for deprivation are well known. In the case of a clergyman, conviction for any temporal crime is a ground of deprivation : Watson's Cler. Law, p. 53.—[CRAMPTON, J. If this were a spiritual office, there would be no doubt about it.]—Felony

(a) Cro. Jac. 269.
(c) 7 Ir. Law Rep. 225.
(e) 2 Dy. 114, 6.

[ocr errors]

BISHOP C

[ocr errors]

OSSORY.

E. T. 1848. is not examinable in the Ecclesiastical Courts, but they may build Queen's Bench.

" a sentence of deprivation upon a conviction for felony: Searle's GRACE

case (a) Even in the case of a temporal officer, as a parish clerk, he may be removed by the minister, upon showing good grounds for it : Rex v. Warren (6); Slader v. Smalbrooke (c). If the object be merely to try the right to a temporal office, that is to be decided by a Temporal Court; but where it is for the purpose of deprivation, it is different: Fitz. N. B. p. 189; Townsend v. Thorpe (d); Peat v. Birr (e). In Newcomb v. Higgs (f) the prohibition was refused because it sought to punish the party. We do not interfere with the Temporal Courts; we have waited until sentence was passed on the offender: Sutton's case (g). As to the effect of a conviction : Rex v. Bridger (h); Jones v. The Bishop of Llandaff (i).

Sir T. Staples and Darley, contra.

This being admitted to be a temporal office, the Ecclesiastical Court has no jurisdiction to deprive the party of it. The case of a parish clerk does not apply to the present, for that may be a spiritual office: 3 Burn's Ecclesiastical Law, p. 89; 5 Com. Dig. Officer, K. 2. This is a freehold office, and the bishop cannot remove the officer. The property of Grace is not forfeited by the conviction for felony; he only forfeits his lands and the profits of his lands. Grace has appointed a sufficient deputy, and imprisonment and non-attendance are no forfeiture of the office. The bishop cannot go behind the patent, which provides merely as to the sufficiency of the deputy : Curle's case (k).—[CRAMPTON, J. The question is, has the bishop jurisdiction to proceed in the way he has ?]—We say he has not: 7 Bac. Ab. p. 153, Prohibition ; 7 Com. Dig. Prohibition 1, F. 4; 2 Rolle Abr. p. 285, plac. 37 ; 18 Vin. tit. Prohibition p. 554. Unless there has been a forfeiture of the office, Grace cannot be deprived of it. It is only after judg

[ocr errors][ocr errors]
« ZurückWeiter »