30 Superior Courts: Queen's Bench. Chancery ought not to prohibit a mere enquiry, which the visitation was, and which was clearly within the jurisdiction of the archbishop. Then came the sentence, and now this objection is raised, that after sentence a prohibition is too late. But Gould v. Gapperf distinctly settled that prohlbition would lie after sentence, even where the objection did not appear on the face of the libel, but was to be collected from the whole of the proceedings in the Court below. [Mr. Justice Patteson.—Poe's case & shews that à prohibition cannot issue to a court martial after its sentence has been ratified by the king and carried into execution] Which shews that before ratification the prohibition might have issued. Here prohibition would not lie before sentence, but that sentence being altogether wrong, the prohibition must go. Cur, adv. vult. and proceed to deprive; and that the Court of prohibition is claimed on various grounds, and a late act of parliament, the 2 & 3 of Vict. c. 86, for the better enforcing church discipline, has been relied upon for the purpose of shewing that the mode of proceeding adopted in this case has been irregular and illegal. That statute contains an enactment to the following effect [his Lordship read it]. But that enactment is qualified by a proviso, that nothing in the act should be construed to affect any authority over the clergy, in their respective provinces, which the archbishop or bishop might then exercise, without process of court. The 23d section of this act was quoted, which provided that no proceedings for criminal offences should be instituted, except in the manner provided by that act. The learned counsel for the dean, argued that the dean, being a clerk in holy orders, and prosecuted in a criminal proceeding for simony, a known offence against Lord Denman, C. J., delivered judgment.- the law ecclesiastical, the proceedings should This was an application on the part of the dean have taken place in an ecclesiastical court, and of York for a writ of prohibition, commanding that the authority to deprive him of his office the Archbishop of York and Dr. Phillimore, his was only vested in an ecclesiastical court, and commissary, to cease from carrying into effect a did not appertain to the visitation of an ordisentence of deprivation from his office, and the nary. Two arguments were raised in answer advantages accruing therefrom, lately passed by to those objections. First, that what had been the commissary and archbishop against the dean done was not a criminal proceeding within the of York. The sentence was awarded on the meaning of the act, the 2 & 3 Victoria; and grounds of contumacy and alleged simony. secondly, that it was a proceeding in virtue of His lordship, after briefly stating the facts, and the authority exercised by the archbishop, acthe questions raised in the argument, proceeded cording to law, over a clerk of his province, to say-There seems no reason to doubt that without process of Court, and thus it was exthere was sufficient authority vested in the cepted from the operation of the act. The archbishop to enquire into the ecclesiastical learned counsel who argued against the prooffences of every spiritual person belonging to hibition has said that the statute refers to the body of which he is the head. In its in- 'causes,' ," and therefore cannot apply to a ception the visitation was perfectly legal. At proceeding of this kind; but the employment first the object of the visitation was confined of that word in the short preamble affords to the fiscal concerns relating to the fabric no adequate reason for the arbitrary restriction found. The dean attended the meeting, and of the act to the form of proceeding, which, in being questioned as to some money he received, ecclesiastical law, may with technical correctconducted himself in a contumacious manner, ness be described as a cause. The 23d section and sentence of contempt was pronounced of the act provides that "no criminal suit or against him by the commissary. He then ab- proceeding against a clerk in holy orders for sented himself, and the proceeding went for- any offence against the laws ecclesiastical, ward, and in answer to certain interrogatories shall be instituted in any ecclesiastical Court which had been put to the ecclesiastical body, otherwise than is hereinbefore provided." the Rev. Mr. Dixon, one of the canons, made this, then, a proceeding of a criminal nature, a statement which was considered a direct or is it merely a common matter of church charge of simony against the dean. The dean discipline, arising out of the visitation, and was then requested to attend to meet the properly within the knowledge of the ordinary? charge. He accordingly atttended, and the The answer appears to be this, that as soon as commissary required him in the first place to a visitor proceeds to examine the proof of an purge himself of the contempt, but that he de- ecclesiastical offence charged on a clerk, for clined to do, and said that Mr. Dixon might the purpose of punishment by deprivation or go on and prove the charge in his absence. otherwise, and more especially by the mode Mr. Dixon did so, and the learned commissary adopted in this case, which was at the instance pronounced the charge to be established in of an accuser, who availed himself of the aid the several alleged cases, and gave judgment of an advocate, a criminal proceeding must against the dean for that offence, as well as for undoubtedly be considered to have been instithe contumacy, which was that he should be de- tuted. According, therefore, to the descripprived of the office of dean, and of all the pre- tion of suits or proceedings given in the 23d ferments held by him in the archbishopric, and section, this proceeding should take place the the sentence was afterwards solemnly ratified way prescribed by the statute, in some eccleand declared by the archbishop himself. The siastical Court. The ordinary's visitation is said not to be an ecclesiastical Court, but to range itself under the 25th section, which saves the authority that the bishops may now 5 East. 345; 1 Smith, 528. 5 Barn, & Ad. 681. Is Superior Courts: Queen's Bench. 31 exercise personally, and without process of law. The Court has then been pressed with Court. That, then, raises the question, whether the argument that the jurisdiction of a visitor the visitor had before that statute the power to has been described in comprehensive terms by deprive the dean of his office, without process the highest authorities, and the most learned of Court. If he did possess that power, he commentators; and the opinion that Lord must have derived it from the general law of Holt gave in the case of the Bishop of St. Dathe land; but we cannot adopt the assumption vid's v. Lucy, as to his very extensive powers, that he did possess it, as we cannot find any has been cited. But we must observe that that instances of its exercise, nor have there been was a case in which nothing was decided but any examples cited of such powers having been the general power of an archbishop to deprive; exercised over the clergy by the archbishops in and that that power might be exercised in a their solemn visitations. We find in Comyn's suit regularly instituted in his metropolitical Digest what are the duties of a general visitor: Court against one of his suffragand bishops; he may proceed summarie simpliciter et de and that such suit was regularly instituted, plano sine strepitu, aut figura judicii." That though the articles exhibited were made reis, according to mere law and right. But still turnable before him at Lambeth, instead of there are some forms on which even such in- before him in the Court of Arches. Then the vestigations must proceed; and the opportu- case of Philips v. Bury,i was also referred to, nity of knowing and answering the charge is with the view of shewing the great powers that absolutely necessary to make such an inveɛti- may be exercised by a visitor. But with regard gation legal. The report of the Ecclesiastical to this latter case it is to be observed that it was Commissioners has been referred to on both the case of a charitable foundation, and there sides. It certainly is not usual for the Court the powers of the visitor, being the founder, to take such documents into consideration for are most extensive, and the rules which apply the purpose of obtaining assistance in the con- to visitors in other cases do not apply there. struction of acts which may subsequently have These cases, therefore, fail in establishing the been passed on the recommendation of the point for which they were cited. The fact of commissioners. In this particular instance we the Court of Queen's Bench refusing to intermay, however, safely refer to the report, to see fere with the functions of a visitor appointed what was the state of the law at the time it was by and acting as the representative of the drawn up. It is a report drawn up by persons founder, and with, and in his right, cannot be of the greatest eminence and learning, and a ground for the decision of this Court in a may properly be referred to for the purpose case like the present, where the party visited I have mentioned. Now that report expressly takes nothing from the visitor, and cannot states that at that time the greatest difficulty ex- therefore be considered to hold his possessions isted in punishing clergymen for many ecclesi- subject to conditions such as a founder would astical offences; and it recommended in very have a right to impose. We do not feel that strong terms the introduction of a new and more we are called on to decide whether visitations expeditious mode of effecting that object. Upon in general are to be considered as Courts, and this part of the case it had been asked, on the whether complaints or charges made at visitapart of the dean, where could have been the tions are to be treated as suits in Court; for we truth of that statement, and where the neces- think it perfectly plain that the complaint made sity of acting on that recommendation, if the at the visitation now under discussion, and dearchbishop possessed, as of right, the power cided upon there, does bear the complete chawhich he had through his commissary claimed racter of a suit or proceeding, such as could only to exercise? To this question no satisfactory properly be enquired of in a court. The court answer has been given; and indeed it seems of the commissary here must be considered as to us quite plain that it was to supply the an Ecclesiastical Court, and these proceedings defect occasioned by this very want of power under the visitation as proceedings in a Court. that the statute in question has been passed. That being so, it is clear that from the late But then it is said that this statute was not in- statute it had no jurisdiction to proceed in the tended to apply to a visitorial power, but to manner it has done, and this Court is therefore the ordinary proceedings in the ecclesiastical constrained to come to the conclusion that the Courts. Let us see how that argument is jus- most reverend prelate, in so far as he has protified by facts. Different modes of dealing ceeded at the visitation to deprive the dean of his with a charge of this sort may be enumerated; office, has acted entirely beyond his authority. such as inquisitio, accusatio, denunciatio, where Under these circumstances, it becomes unnecespersons had come to answer tho sentence sary to enter minutely into other objections of a passed by the ordinary in his Court. All these less extensive kind. But there is one point, of a modes of proceeding are slow and costly; and technical nature, to which we must advert. It in this stage of the argument it was asked, and was argued that the sentence is final, and that the question has not been answered, why, if there is nothing that this court can now prothe ordinary possessed the power now claimed, hibit to be done; that there is not even a conhad such expensive proceedings been resorted tinuing court to which the writ of this Court to, in order to bring spiritual persons to punishment? It is well known that in fact the want of the power now claimed formed one of the reasons for the employment of such modes of procedure, and also for introducing the present h | Ld. Raym. 447, 539. i1 Ld. Raym. 5; and Shower's Parl. Cases, 35, where the judgment given in the Court below was reversed. 32 Superior Courts; Queen's Bench: Queen's Bench Practice Court.-Letter Box. can be addressed. That argument requires to be narrowly watched, because if carried out to the fullest extent, it may be used to give effect to unlawful proceedings, merely because they have been brought to a conclusion. But that is not the case here; for on looking at the sentence, we find that the archbishop admonished the dean not to exercise his office on pain of the greater sentence of excommunication, and the court was adjourned. It was afterwards again adjourned, and so continues at this moment. It is clear, therefore, that there is a court to which the writ of prohibition may now be addressed, and it can be addressed to the archbishop to prevent him from proceeding to the full extent indicated in the monition. The delay has not been the fault of the dean; he could not appeal before the sentence was pronounced, for the sentence of deprivation was the only thing done beyond the jurisdiction of the archbishop. Up to that point, certainly his grace had the power to inquire with a view to ulterior proceedings; and it seems that the Lord Chancellor discharged an application for a prohibition made before sentence pronounced, on that very ground. The clear conviction of the Court on this case is not embarrassed by the opposite judgment of the learned civilian, who acted as commissary, and who cannot be supposed to have adverted to the statute. The Court cannot but believe that it escaped his attention, occus pied as it was by a great variety of circumstances, and unassisted in the view he took of his office, by advocates on both sides, who might have discussed before him the question of the extent of his jurisdiction. If we felt any doubt on the subject, we should undoubtedly call on the Dean of York to declare in prohibition; but after the long, elaborate, and matured arguments, enforced with consummate ability by counsel of the highest talents and learning, we feel that we owe it to all parties, to save delay and unnecessary expense; that we owe it to the public, and in a particular manner to ―to encourage no doubt where we feel none on subjects of such paramount importance, so deeply affecting its rights, its interests, and its duties. The rule for a prohibition must therefore be made absolute. the church. to make it a part of the same rule that the residue should be handed over to the defendant. In this cause the defendant was arrested at the suit of the plaintiff for 1000.; that sum was deposited in lieu of bail, under the 43 G. 3, c. 46, and paid into Court pursuant to 7 & 8 G. 4, c. 71. The cause, and all matters in difference, were then referred to an arbitrator, who awarded that the defendant was indebted to the plaintiff in the sum of 6667. 2s. 10d. in respect of the cause, and in 1079/. in respect of other matters in difference. The plaintiff now sought by motion to have the sum of 6661. 2s. 10d. paid out of Court to him, being a portion of the 10001. Cause was shewn on behalf of the defendant. The plaintiff's motion, it was admitted, could not be refused, but it was urged that the rule should be drawn up with the additional term engrafted upon it, that the residue should be handed over to the defendant. On behalf of the plaintiff, it was contended that the Court would not adopt this course, for that there was a large balance due to the plaintiff in respect of the matters in difference, and that the object of the defendant must be made the subject of a separate application. Wightman, J.-I think that in strictness the term sought to be engrafted on this rule cannot be imposed, if it is objected to. That portion of the case must be the subject of a distinct application, when the plaintiff will have an opportunity of answering by affidavit the defendant's allegations. The present rule must be absolute in its terms. Rule absolute. Theobald in support of the motion; Petersdorff, contrà. Fowle v. Steinkeller, T. T. 1841. Q. B. P. C. THE EDITOR'S LETTER BOX. We believe that the method of communication recommended by a correspondent, in the cases of unsuccessful candidates is already adopted. ،، The letters of "A Constant Reader"; J. T.; Aspiro"; J. T. C.; "A SubRule absolute accordingly. In re the Arch-scriber;" "Norma," and "Ego quoque"; have bishop of York and Dr. Phillimore, T. T. 1841. Q. B. F. J. Queen's Bench Practice Court. PAYMENT OF MONEY INTO COURT IN LIEU OF BAIL. — REFERENCE OF CAUSE AND ALL MATTERS IN DIFFERENCE.-AWARD.-AP PLICATION OF MONEY. The defendant was arrested for 1000l., tohich sum was deposited in Court in lieu of bail. The cause, and all matters in difference, were referred, and the arbitrator found the defendant to be indebted to the plaintiff in 6661. 2s. 10d., in respect of the cause, and in 10791. in respect of other matters in difference. The Court, upon motion by the plaintiff, ordered the sum of 6661. 28. 10d. to be paid out of Court to him, but refused been received. We think the subject of the Horsemanship of Lawyers may be postponed for the present. In the list of counsel attending the Chancery Courts, printed in the last number of the Legal Observer, it is stated that Mr. Bethell attends only at the Court of the Vice Chancellor of England,-we are informed, he also | attends the Lord Chancellor's Court. In consequence of several additions (and we trust improvements) in the Legal Almanac, it will not be published for some days to come.As it is our desire to make the work in all respects useful to the profession, we have deferred it a short time to give all the new appointments. The Analytical Digest of all the Cases reported in all the Courts, will be published next Saturday. The Legal Observer. SATURDAY, NOVEMBER 20, 1841. 66 Quod magis ad Nos HORAT. THE PUNISHMENT OF DEATH. We have already printed the act of last session, which reduced the punishment of death to still narrower limits than before; (see 22 L. O. 391), but we may here consider its precise effect. used in carrying on a trade, or any ma chinery in any factory or mine, was punishable with death. By s. 2 of the present act, the punishment is now reduced to transportation for seven years or imprisonment for three. But by far the most important alteration made in our penal law by the present act, is with respect to the crime of rape. The punishment of this crime has varied considerably in different periods of our history. By the Saxon law it was punished with death; by William the Conqueror, with castration and loss of eyes, but in the reign of Edw. 1, the punishment was mitigated to two years' imprisonment and a fine at the king's will. In the reign of Elizabeth it again became punishable with death, and this was confirmed by stat. 9 Geo. 4, c. 31, s. 16, and continued law until the present year. The judges have, however, very rarely of late left a prisoner for execution for this offence; and by s. 3 of the present statute, the crime, whether committed on a woman or a child of ten years, is now punishable only with transportation for life. By stat. 15 Geo. 2, c. 13, and 37 Geo. 3, c. 46, s. 6, officers or servants of the Bank of England, secreting or embezzling any note, bill, warrant, bond, deed, security, money or effects, entrusted with them or with the company, were guilty of felony, and punishable with death, and the same punishment was awarded by stat. 24 G. 2, c. 11, to officers and servants of the South Sea Company. By stat. 55 Geo. 3, c. 184, the privately using any stamp or die relating to any stamp duty, or fraudulently cutting off the impression of any stamp or die from any vellum, parchment or paper, with intent to use the same, was punishable with death; so, by stat. 55 Geo. 3, c. 185, was the transposing from one piece of gold or silver plate to another, or to any vessel or ware of base metal, any impression on any gold or silver plate, or exposing such gold or silver or ware of base metal, having any These are all the alterations, with respect mark, stamp or die, with intent to defraud. to the punishment of death, made by this By stat. 6 Geo. 4, c. 85, s. 18, returning statute; but by s. 4, it is enacted, that imfrom transportation after having been trans-prisonment awarded for any offence under ported from St. Helena, was also liable to capital punishment. All these offences have now ceased to be regarded as worthy of so severe a punishment, and it has accordingly been removed from crimes of a similar class; and by sect. 1 of the present act, transportation for life, or for any term not less than seven years, is substituted for the punishment of death. By stat. 7 & 8 Geo. 4, c. 50, s. 8, the demolishing a church or chapel or erection VOL. XXIII.-NO. 687. the act, may be with or without hard labour, and solitary confinement may also be directed, whether the same be with or without hard labour, not exceeding one month at a time. This is simply carrying out the provisions of stat. 1 Vict. c. 90, ss. 3 and 5. By s. 6, none of the offences within the act are to be tried at any general or quarter sessions. It is only further to be observed that the act came into operation on the first day of October last. D 34 The Punishment of Death.-Notes on Equity. The crimes now, punishable with death | vant from the year 1817, down to the appear to be, 1. Treason. 2. Murder. 3. month of June, 1840, but his age and inUnnatural offences. 4. Setting fire to any firmities having rendered him incapable of king's ship or stores. 5. Causing injury to life with intent to murder. 6. Burglary accompanied with an attempt to murder. 7. Robbery, accompanied with stabbing or wounding. 8. Setting fire to a dwellinghouse, any person being therein. 9. Setting fire to, casting away, or otherwise destroying ships, with intent to murder any person. 10. Exhibiting false lights, with intent to bring ships into danger; and 11. Piracy, accompanied with stabbing &c. But of these it seems to us that the general inclination and practice appears to be rather to lean towards diminishing than increasing the number; nor do we consider the time very distant when our list of capital crimes will be reduced to the two first. NOTES ON EQUITY. RECEIVER'S ALLOWANCE. A RECEIVER, though he passes his accounts and pays his balance regularly, is not entitled to make interest for his own benefit of monies which come into his hands in his character of receiver, during the intervals between the time of passing his ac counts; Shaw v. Rhodes, 2 Russ. 539; and if he does not regularly account and pay in his balances, he is liable to be charged with interest on the money in his hands, and to be deprived of his salary. White v. Lady Lincoln, 8 Ves. 371; Potts v. Leighton, 15 Ves. 273. The allowance to a receiver appointed by the Court depends on the degree of difficulty or facility experienced in the collection. There is no general rule on the subject. When the receipts consist of rents of freehold and leasehold estates, 57. per cent. upon the amount received is frequently allowed. If there be any special difficulty in collecting the rents on account of the sums being extremely small, or of the payments being very frequent, or weekly payments, then the allowance is increased; on the other hand, if there should be very great facility in receiving the rents, then less than 51. per cent. is allowed. It may be increased if there be any extraordinary difficulty, or diminished if there be any extraordinary facility in the collection. Per Lord Langdule, M. R., Day v. Croft, 2 Beav. 492. SERVANT OF LUNATIC. On a reference to the Master, it appeared among other things, that John Wright had lived with the lunatic, as his personal ser giving that attention to the lunatic which his malady required, it was considered necessary that he should retire from the lunatic's service, and that his place should be taken by a more active person. The Master, among other things, reported that an allowance of 60l. per annum should be made to John Wright. The next of kin consenting, the Lord Chancellor said he thought the proposal as to the old servant very reasonable, but asked whether there was any precedent for it. On a subsequent day, Mr. Sidebottom stated that no precedent could be found, but that he was instructed to say, on behalf of the Committee, that they were satisfied that the allowance was one which the lunatic, if he should ever recover, would approve, and the Lord Chancellor made the order. In re Carysfort, 1 Cr. & Ph. 76. LONG ANNUITIES. Where a testator, possessing long annuities and money in different funds, bequeathed the residue of his estate to A. for life, and after her death, he certain gave to B., it was held that the long annuistock legacies, and whatever might remain, ties ought to be converted for the benefit rule on the subject was thus laid down by of the parties in remainder. The general Lord Langdale, M. R.-Where a testator has given an estate, or the residue of an estate, to persons in succession, as to one for life, with remainder to another person; the Court presuming that the testator intended the remainder-man should have something, will so deal with the property, if it be a property that is wearing out and may terminate during the life estate, so as to secure the accomplishment of that intention, and give the remainder man something; for that purpose it will convert the give the income which arises from it to the perishable into a permanent property, and person entitled for life in succession, and preserve the capital for the person entitled in remainder. "But if, upon the construction of the will, it appears the testator had another intention, that is to say, an intention to give to one or more persons who of lives, the enjoyment of the property, in are to take for lives, or during a succession the state he left it at the time of his death, then the Court will carry that intention into effect." Lichfield v. Baker, 2 Beav. 487; and see as to this, Mills v. Mills, 7 Sim. 501; Bathune v. Kennedy, 1 Myl. & C. 114; Vincent v. Newcombe, 1 You. 599. |