ment of death that attainder begins, and until then a felon may be E. T. 1848. heard in Court. F. Fitzgerald replied, and referred to Ex parte Bullock (a). BLACKBURNE, C. J. This is an application for a prohibition to restrain the Bishop of Ossory from continuing a proceeding in his Court to remove the appellant, William Grace, from the office of registrar. That proceeding was founded on the fact that William Grace was convicted of a felony for forgery, and sentenced in this Court to transportation for seven years. We have had under our consideration two distinct questions ; the first, suggested by the Court itself, is, whether it be possible for us to entertain this application by a convicted felon ? We are all of opinion that we cannot do so; my Brother PERRIN has supplied me with two authorities that seem decisive of this case: Co. Lit. p. 130, a, and Sir J. Savage's case (b). Lord Coke says:"Besides men attainted in a præmunire, every person that is at"tainted of high treason, petit treason or felony, is disabled to "bring any action, for he is extra legem positus, and is accounted "in law civiliter mortuus." In accordance with this is the case of Bullock v. Dods (c). Bullock was capitally convicted for embezzlement, and his sentence having been commuted to transportation he presented a petition to supersede a commission of bankruptcy issued against him; and Lord Eldon decided that, being attainted of felony, his petition could not be entertained. Bullock having gone to New South Wales in execution of his sentence, afterwards returned to England and brought an action. It appeared that the residue of his sentence had been remitted by the governor of the colony, and it was decided that he could not sue, his attainder having been pleaded in bar; the Court say, p. 275:"The attainder of the plaintiff was properly pleaded in bar; an "attainted person is considered in law as civiliter mortuus; he may acquire, he cannot retain." It is said, however, that there is .no attaint, because the felony is not punishable by death; there is (b) 2 Dyer. 151. 66 (a) 14 Ves. jun. 452. (c) 2 B. & Ald. 258. Queen's Bench. GRACE v. BISHOP OF OSSORY. April 27. GRACE v. E. T. 1848. no authority for this position. Patteson, J., in the case of Gray v. Queen's Bench. The Queen (a), says: "At Common Law, all felonies (whether including petit larceny or not is not material) were capital;" so that even if the position contended for were well founded, the attainder must attach when the crime was made a felony, though it was not punishable capitally. This decision of Gray v. The Queen is itself an authority for holding this to be the law. BISHOP OF The second question which was discussed at the bar, though not necessary to be decided, it may be right to consider. It is this:— whether an Ecclesiastical Court has jurisdiction to remove a convicted felon from the office of registrar, which confessedly is a freehold? If the right to the office was in question, this argument would be unanswerable; but it is not, the sole object of the proceeding is to have an adjudication of the question, whether a convicted felon under sentence of transportation be a fit person to hold this office which appertains to the administration of justice? This, from its nature, is a matter which particularly, I may say exclusively, belongs to the Court that has cognizance of the duties and responsibilities of its own officers. It has not been suggested that there was any other tribunal to which such a matter can be referred; and if we interfere and prohibit the bishop, we must decide that there are no legal means for removing from this office a person who cannot possibly perform its duties, whose responsibility is nugatory, and whose continuance in office would be a public scandal and disgrace. If we required authority for our rule, it would be sustained by the case of Townsend v. Thorpe and Sir John Savage's case. As to the argument that we ought not to interfere because there is a deputy who is discharging the official duties, it is sufficient to say that he is acting under a revocable authority; and at all events it is for the Ecclesiastical Court to say whether the office may be exercised by deputy. The ends of justice and its own character call for the removal of the appellant. CRAMPTON, J. I concur in the ruling of the Court. But there is one ground (a) 11 Cl. & Fin. 427. E. T. 1848. GRACE V. OSSORY. upon which I should not wish to rest my judgment; that is, on the attainder. I am satisfied an attainder has taken place by the sentence, although it was not a sentence of a capital character; the party was found guilty of forgery and sentenced to transportation BISHOP OF and an attainder has ensued; but I do not think it necessary to give an opinion whether if this party were sued in another Court he would have a right to apply to this Court for a prohibition. There is a late authority with respect to both points, the attainder and the right of suing in a Court of Law: Doe v. Pritchard (a). The However, I am satisfied that this motion for a prohibition is without any ground to support it in point of law. The ground suggested for the prohibition is, that the Bishop's Court is proceeding in a case in which the bishop has not jurisdiction. proceeding in the Bishop's Court is ex officio, to deprive Grace of the office of registrar, and the ground stated is his conviction for forgery, and that he is now a felon under sentence. It was argued that the office was a temporal one, in which the officer has a freehold, and that the Ecclesiastical Court has no jurisdiction to try a title to a temporal matter which belongs purely to a Court of Law. It may be conceded that the office is temporal, that Grace has a freehold in the office, and also that the title can only be tried by a Temporal Court; but if no Temporal Court has jurisdiction to deprive the registrar of his office, a convicted felon would be at liberty to evade all attempts to oust him. That certainly was not Lord Mansfield's opinion in Rex v. Warren. There the office was analogous to the office of registrar in this respect, they are both temporal; and Lord Mansfield says:-"The right of amotion was in question, and all agreed that it must be somewhere :" and he adds:—"What remedy is there in Westminster Hall to "remove him? He certainly has his office only quamdiu bene "se gesserit." And Aston, J., adds:"As long as the clerk "behaves himself well he has a good right and title to continue "in his office; therefore if the clergyman has any just cause for 66 removing him, he should state it to the Court." It is therefore plain, as there must be a remedy somewhere, and as the remedy (a) 5 B. & Ad. 765. GRACE v. OSSORY. E. T. 1848. is not in a Temporal Court, we may safely infer upon general prinQueen's Bench. ciples, that if the officer is incapable of discharging his duties, the Spiritual Court has a right from the nature of the thing to susBISHOP OF pend or remove that officer, for he must be subject to the head of the office of which he is the minister. It is admitted if it was official misconduct, the bishop would have the power of removing him; it is so decided in the Queen v. Smith (a). But it is said, the offence being a Common Law offence, outside his official duties the Spiritual Court has no power. The authorities cited to sustain this are where parties have conflicting titles for the same office, in the disposal of the Spiritual Court. There are some cases in which the Spiritual Court was proceeding to punish for the Common Law offence; but these are cases where the Spiritual Court was encroaching on a temporal jurisdiction, and in that case the encroachment was prohibited; but here the only question at issue is, whether the Spiritual Court has a right to remove a person under circumstances showing an incapacity in him to perform his duties? But it is said the Court has a right to deprive the officer for misconduct, although it have no right to punish him. The case of Newcomb v. Higgs is very important, because it shows a superior officer has a right to remove an inferior for incapacity, and whether that incapacity existed before or after the appointment. In 2 Rolle Abr. p. 129, the incapacity was one which grew up after appointment, it was subsequent misconduct which rendered him incapable of discharging his duties. Now, in the present case there was an utter incapacity to discharge the duties of the office, it is therefore a clear case for the exercise of the jurisdiction of the Court. I apprehend a convicted felon cannot insist on his right to act by deputy. But there is another distinction to be taken; the bishop has not summarily removed the officer, but he has proceeded regularly ex officio to remove him, and in so doing he was proceeding according to the course suggested by Lord Mansfield, namely, to institute a proceeding and inquiry. I am therefore satisfied, upon all the grounds, the motion ought to be refused. PERRIN, J., and MOORE, J., concurred. Cause allowed. CHARLES MEARA บ. SAMUEL M'CLINTOCK. E. T. 1848. tion by indorsee against acceptor, the defendant pleaded that the bills of April 28. ASSUMPSIT, by indorsee against acceptor of two bills of exchange. To a declaraThe declaration was in the common form, and the defendant pleaded the general issue; and special pleas to the effect that the bills were obtained by the respective drawers of them, in collusion with the plaintiff and others, from the defendant, by fraud, covin and misrepresentation; that the drawers, whilst plaintiff had notice and knowledge of the fraud, covin and misrepresentation, indorsed them to the plaintiff, and that the bills were thereby void in law. Replication Similiter to the first plea, and de injuriâ suá propriâ, &c., to the other pleas. Demurrer to this replication, that by the plea the contract was shown to be altogether void, and therefore the replication de injuriâ was inapplicable; that the replication was bad for duplicity, and was too large, issue being taken not only on the obtaining of the bills by fraud by the drawers, but also on the other distinct facts alleged; that the plea amounted to the general issue, and that therefore the replication de injuriâ was improper and inapplicable; that it was argumentative and an improper form of pleading in this action. Joinder in demurrer. exchange were obtained by the drawers of them in collu sion with the plaintiff and others from the defendant, by fraud, covin and misrepresentation, and that the drawers, whilst plaintiff had notice of the fraud, &c., indorsed them to the plaintiff; and that the bills were and are thereby void in law. Replication de injuria. Held, on special demurrer, the replication was good. Where there was an issue in fact and in law, and a notice of trial was served on the 18th day of November, in S. B. Miller, with whom was Napier, for the demurrer. Up to the time of the New Rules in England the replication de injuriâ was unknown in actions of assumpsit, and it is hazarded the general here though these rules are not in force in this country; a plea in any notice to form, omitting assess contingent damages on the issue in law; and after the service of notice of trial a demurrer was filed on the 23rd of November, and joinder in demurrer on the 24th; the venire facias and distringas having issued on the 19th, aud the trial being had on the 26th, and judgment by default obtained; Held, that such proceedings were irregular, and a trial so had will be set aside. |