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  • Act of the Imperial Parliarnent 111 Moo. P.C. 3977.
  • Act. Bluek v. Rackhanz (5 Moores P.C. Cases,.305),
  • [Dec. 4 and 12, 18571. Section 20
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Citation Codes
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Attorney(S)
Acts
  • Act of the Imperial Parliarnent 111 Moo. P.C. 3977.
  • Act. Bluek v. Rackhanz (5 Moores P.C. Cases,.305),
  • [Dec. 4 and 12, 18571. Section 20
Smart Summary

Factual and Procedural Background

This opinion concerns litigation between two clergymen of the Diocese of Bath and Wells: the Reverend Joseph Ditcher (Appellant), Vicar of South Brent, and the Venerable George Anthony Denison (Respondent), Vicar of East Brent and Archdeacon of Taunton. Ditcher complained to the Archbishop of Canterbury (October 1854) that sermons preached and published by Denison in 1853 and 1854 contained doctrine contrary to the Thirty-nine Articles. The Archbishop issued a Commission (30 November 1854). The Commissioners met and, in January 1855, reported that there was prima facie ground for further proceedings.

Criminal articles were prepared and a copy was served on Denison in August 1855. The Archbishop was asked to constitute a court and to cause Denison to be cited. After some delay and interlocutory proceedings (including writs of mandamus in the Queen’s Bench compelling the Archbishop to proceed in the Diocese), a citation dated 5 June 1856 was served on Denison on 10 June 1856 calling him to appear at Bath on 22 July 1856. The Respondent protested that the “suit or proceeding” was barred by section 20 of the Church Discipline Act (3 & 4 Vict., c. 86) because more than two years had elapsed since the alleged offence (the sermons of 1853). The protest was overruled at the Bath hearing; a sentence of deprivation was pronounced against Denison. Denison appealed to the Court of Arches. The Dean of the Arches (Sir John Dodson) heard argument limited to the limitation point and sustained the protest, dismissing the proceedings. The Appellant appealed from that decree; the present opinion records the further consideration of that limitation question and the Privy Council’s view (delivered by Lord Justice Knight Bruce, with the Court intending to report that the present appeal be dismissed).

Legal Issues Presented

  1. What is the meaning of the phrase “every suit or proceeding” in section 20 of the Church Discipline Act (3 & 4 Vict., c. 86) for the purpose of the two-year limitation? Specifically, whether a “suit or proceeding” is commenced by (a) the issuing of a Commission of inquiry by the Archbishop, (b) the report of Commissioners, (c) the filing of articles in a Consistory Court, (d) the service of those articles on the accused, or (e) the service (or issuing) of a citation to appear before a competent court.
  2. If a “suit or proceeding” is commenced at one of the alternative stages above, from which act is the two-year limitation to be reckoned?
  3. Consequentially, were the proceedings that led to the Bath sentence of deprivation barred by lapse of time under section 20?

Arguments of the Parties

Appellant’s Arguments (Mr. R. Palmer, Q.C., & Mr. Mackeson)

  • The Appellant contended that the commencement of the “suit or proceeding” mentioned in section 20 occurred earlier than the service of a citation. Suggested possible commencement points were: (a) issuance of the Commission by the Archbishop; (b) filing of the criminal articles in the Consistory Court at Wells; or (c) service of the articles on the Respondent.
  • The Appellant argued that the machinery of the Act envisaged preliminary inquiry (Commission and report) followed by the Bishop’s power to send the case for trial at any time after a report finding ground for further proceedings; therefore the filing of the articles should be treated as the commencement of the suit or proceeding for limitation purposes.
  • Appellant relied on the structure of sections (3rd, 6th, 9th, 13th, etc.) as reflecting what “proceeding” means under the Act and analogised filing of articles to the commencement steps at common law or chancery (e.g., issuing writ or subpoena).

Respondent’s Arguments (Th. Phillimore, Mr. Coleridge, Sir Fitzroy Kelly, Q.C., Dr. Bayford)

  • The Respondent argued that a “suit or proceeding” in ecclesiastical practice commences only when the accused is actually summoned—i.e., when he is served with a valid citation to appear before a competent court (citing Sherwood v. Ray and related ecclesiastical authorities).
  • It was submitted that section 20 must be construed strictly in favour of the accused as it is penal in character; if any ambiguity exists it should be resolved for the accused.
  • Counsel for the Respondent relied on established ecclesiastical practice and a line of authorities and decisions construing when a suit in ecclesiastical courts is deemed to begin (service of citation), and they also invoked common-law rules for construing statutes of limitation (cited common-law cases supporting limitation principles).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Sherwood v. Ray (1 Curteis’s Ecc. Rep. 173) and Ray v. Sherwood (1 Moore’s P.C. Cases, 353) Decisions that a suit in the Ecclesiastical Courts commences by service of a citation (the "true commencement"). Cited by Respondent and considered by the Court as authoritative on ecclesiastical practice; used to support the conclusion that a suit does not commence before citation is served.
Various common-law limitation and procedure authorities (Green v. Rivett; Murray v. The East India Company; Short v. M'Carthy; Rhodes v. Smurthurst; The East India Company v. [named variant in text]; Polson v. Kaye; Imperial Gas Company v. The London Gas Company; Kennet and Avon Canal Co. v. The Great Western Canal Co.; Pott v. Clegy; Granger v. George; Boloell v. Young; Battley v. Faudkner; Hovenden v. Lord Annesley; Smith v. Fox; Freake v. Cranefeldt) General principle: statutes of limitation and penal statutes should be construed in favour of limitation and, where ambiguity exists, favors the accused; comparative and common-law authority on limitation principles. These authorities were cited by Respondent’s counsel to support a restrictive construction of the two-year limitation (section 20). The Court acknowledged these common-law rules as relevant background for statutory interpretation and for the proposition that limitation provisions should favor the accused.
Bluek v. Rackham (5 Moore’s P.C. Cases, 305); Monckton (3 Notes of Cases, Suppl. p. lv.); Bishop of Hereford v. T--n (2 Roberts’ Ecc. Rep. 595); Brookes v. Cresswell (1 Roberts’ Ecc. Rep. 606); Bishop of Lincoln v. Day (4 Notes of Cases, 299); The Dean of York’s case (2 Q. Bell. Rep. 1); The Queen v. The Archbishop of Canterbury (6 Bl. & Ell. 546) Authorities on construction of the Church Discipline Act and on the manner in which ecclesiastical proceedings under that Act have been conducted or treated in prior decisions. Cited by both sides in argument about how the Church Discipline Act has been construed and applied. The Court considered them but reached a construction that limited the commencement of a “suit or proceeding” to the stage of citation/commencement analogous to that in the Archbishop’s Court.
The Bishop of Lincoln v. Day; Brookes v. Cresswell; The Bishop of Hereford v. T--n (cases and reports referenced) Examples of prior judicial opinions addressing how suits under ecclesiastical law and under the Act proceed and when they are to be treated as commenced. The Court acknowledged these previous judicial opinions (and the respect due to their authors, including Sir Herbert Jenner Fust and Sir John Dodson) but, after weighing the whole statute, construed section 20 so as to require citation/commencement in the relevant court before the running of the two-year period.
Order in Council of 28 March 1771; Order in Council of 18 April 1815 (referenced earlier in the opinion) Norms and prior executive determinations (the 1771 Order provides a procedural rule about lodging Acts "au Greffe" for fourteen days; the 1815 Order applied that rule to declare an Act null and void where the lodging requirement was not complied with). These were mentioned in an earlier part of the printed opinion (on a Jersey matter). Their Lordships treated the 1771 Order as decisive for the lodging requirement in that separate matter. They are not central to the Ditcher/Denison limitation question but were part of the broader opinion content printed in the same report.
Cases and authorities referred to in the judgment or by counsel, including The Bishop of Lincoln v. Day; The Dean of the Arches opinions (Dr. Lushington); Monckton’s case; and other ecclesiastical practice authorities Various propositions about (a) when a suit is to be regarded as commenced in different ecclesiastical venues; and (b) the meaning of words such as "suit" and "proceeding" in the Church Discipline Act. The Court reviewed these materials, considered different readings given by eminent ecclesiastical judges, and explained why, in their Lordships' view, the construction adopted by the Dean of the Arches (that a suit did not commence until a citation was served) was correct for the purposes of section 20.

Court's Reasoning and Analysis

The Court’s analysis focused singularly on the proper construction of section 20 of the Church Discipline Act (3 & 4 Vict., c. 86): "That every suit or proceeding against any Clerk in Holy Orders ... shall be commenced within two years after the commission of the offence ... and not afterwards."

Major analytical steps and principles applied by the Court (as recorded in the opinion):

  • The Court examined the language of section 20 in the context of the whole Act, noting that many other sections use the words "suit", "proceeding" and "proceedings" in varying senses; it stressed that the statute had to be read as a whole and each word given weight where possible.
  • The Court observed the lexical distinction: "suit" is a narrower, more specific term than "proceeding"; not every proceeding is a suit, but a suit is a proceeding. The Court warned against treating language as tautological and assumed that different words were intentional.
  • The Court noted that Commissions, inquiries and reports under the Act are preliminary and can be dispensed with in some circumstances (e.g., section 13). A Commission and its report are inquiries aimed at deciding whether a suit should be instituted, and they do not themselves adjudicate guilt or lead to punishment without subsequent suit.
  • Given ecclesiastical practice, the Court reasoned that when a matter proceeds to the Archbishop's Court (or is appealed to it), the procedural act most analogous to the commencement of a suit is the service (or valid issuing) of a citation requiring the accused to appear. In the Archbishop’s Court the citation is the recognised commencement; therefore the Court held that an analogous commencement is required when proceedings are taken in other tribunals.
  • The Court accepted that the filing and service of articles, the Commission, the report and their registration did not constitute a suit or the commencement of a proceeding for the purposes of section 20. Such steps were preliminary and, in the absence of a later valid citation, were in truth nullities as to the protection of the accused.
  • The Court applied the interpretive principle that statutes which impose penalties or limit prosecutorial time should be construed so as to favour the person charged. It therefore adopted the view that a penal statute like section 20 should be read strictly in favour of the accused where plausible.
  • Balancing practical inconveniences (delay between Commission and report) against the mischief of permitting penal suits to be founded on very old reports, the Court preferred an interpretation that prevents prosecution long after the alleged offence and that requires a tangible act (citation/ summoning) within the two-year period.
  • Accordingly, the Court concluded that none of the preliminary acts (application for a Commission, the Commission itself, the report, the filing or service of articles) commenced a "suit or proceeding" within the meaning of section 20; the relevant commencement was the service/issuance of a valid citation. Because the citation in this case was served (10 June 1856) more than two years after the 1853 sermons, the suit was barred.

Holding and Implications

Holding (core ruling): The Court concluded that, for the purposes of section 20 of the Church Discipline Act (3 & 4 Vict., c. 86), a "suit or proceeding" is not commenced by the mere issuing of a Commission, the report of Commissioners, the filing of articles, or the service of those articles; rather, the suit commences only when the accused is served with a valid citation to appear before a competent court.

Implications and direct consequences:

  • Because the citation in the present case was served more than two years after the alleged offences (the sermons of 1853), the proceedings were barred by section 20. The Court indicated its intention to report that the present appeal should be dismissed (i.e., the Dean of the Arches’ decision sustaining the limitation objection was correct).
  • The Court held that the Commission, the report and the earlier filing and service of articles (all occurring before June 1856) could not, after lapse of more than two years, support or validate subsequent proceedings; those preliminary steps became ineffectual to sustain a later prosecution.
  • The Court expressly declined to express any opinion on the substantive question whether the Respondent had actually taught heretical doctrine; its ruling was confined to the limitation issue and the procedural effect of section 20.
  • No broader doctrinal conclusion on ecclesiastical offence merits was made; the decision's practical effect is to require that, for penal ecclesiastical proceedings under the Church Discipline Act, a citation (or equivalent valid commencement) must be served within two years of the alleged offence or the prosecution will be time-barred.

Note: The summary is confined to matters expressly stated in the provided opinion. The Court recognized and discussed numerous prior authorities and judicial opinions in the ecclesiastical and common-law context when construing section 20; the above captures the explicit reasoning and outcome contained in the opinion.

    Ditcher v. Denison (United Kingdom)

    XI MOORE, 323 DITCHER v. DENISON [1857]

    value of their property ; and that no intentlon of repealing the Law in either of these

    respects had been pointed at in any par t of the proposed Articles of the new Law on

    the amendments, which alone had been lodged, au Greffe. That by such means an

    iiiiportant right had been taken away without any opporturiity being allowed to the

    iiiernbers of the different parishes to consult their constituents on the subject; such

    preamble never having been lodged, au Greffe, notwithstanding a motion made by a

    Deputy of one of the parishes, for that purpose ; but that the preamble was adopted

    by the majority of the Assembly of the States, and formed p a r t of the proposed Law

    iii question, and it was urged on behalf of the Petition,eirs, that the omission to lodge

    the preamble of the Acte, au Greffe, would alone necessitate the rejection of the pro-

    posed Acte by Her Majesty in Council.

    In support of this view, an Order in Council of the 18th of April, 1815, was

    referred to, by which an Act of the States of the 2nd of October, 1813, makillg a ra te

    on tlie inhabitants, was declared null and void, and ordered t o be erased from the

    Record8 of the Island, because it had been passed without having been lodged, a u

    Greffe, pursuant to the Order in Council of the 28th of March, 1771, notwithstanding

    the rate had beeii already levied.

    This objection having been stated, their Lordships decided upon hearing Counsel

    on this point only.

    Mr. R. Palmer, Q.C., and Mr. Mackeson, were heard for the Petitioners; and

    [323] Sir Frederic Thesigsr, Q.C., and Bfr. G. M. Giffard, for the States of Jersey.

    Their Lordships intimated their opinion, through

    Tlie Right I-Ion. T. Pemberton Leigh, That the objection was fatal, the provisions

    of the Order in Council of the 28th of March, 1771, declaring that ‘‘ after which i t ”

    (that is, the entire Acte, including of course the preamble) “shall be lodged, au

    Greffe, for fourteen days, a t least, before it, shall be determined, in order that every

    individual of the States may have full time to consider thereof, and the Constables to

    consult their constituents, if they judge necessary,” were conclusive, and implied

    t h a t mheii an Acte had been passed, it had been lodged for fourteen days, au Greffe,

    wliicli it mas riot pretended tlie A4cte of 1857 had been; and that their Lordships

    noiild report such as their opinion to Her Majesty in Council.

    Tlie following report was niade: The Lords of the Committee in obedience to

    Her Majesty’s Order of reference have taken the petition into consideration, and

    proceeded to hear Counsel in the matter on behalf of the Petitioners, and :tIso on

    behalf of the States of the Island of Jersey; and it appearing in the courhe of such

    hearing, that the provisions of an Order in Council of the 28th of March, 1771,

    which directs that when anything is proposed in the assembly of the State#, i t shall

    be lodged, U L I Grejfe , f o r fourteen days, at least, before it shall be determined, hsve

    not been duly complied n i th in respect of the Acte of the 30th of April last, their

    Lordships do agree humbly [324] to report as their opinion to Your Majesty, that

    it is not advisalile for Tour Majesty t o confirm the said A&. This report was ap-

    proved by Her Majesty, and an Order in Council made in conformity with such

    recomniendation.

    [Mews’ Dig. tit. COLONY : 11. PARTICULAR COLONIES ; 13. Jersey a n d Guemary;

    b. ConstLtutzon.

    ON APPEAL FROM THE ARCHES COURT OF CANTERBURY.

    The Reverend JOSEPH DITCHER, Clerk,-Appellant; The Venerable GEORGE

    ANTHONY DENISON, Clerk,-Respondent * [Dec. 4 and 12, 18571.

    Section 20 of the Church Discipline Act, 3rd and 4th Vict., c. 86, enacts, ‘ I that

    * Present : The-RighcRev. and RGht Hon. The Lord Bishop-of LondoQthe

    Right Hon. The Lord Justice Knight Bruce, the Right Hon. T. Pemberton Leigh,

    the Right Hon. Sir Edward Ryan, the Right Hon. The Lord Justice Turner. and the

    Right Hon. Sir John Patteson.

    718

    - ~ - -

    .

    XI MOORE, 325

    every suit or proceeding against any Clerk in Holy Orders, for an offrnce

    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.”

    Held (affirming the decree of the Arches Court) that the “ suit or proceeding ”

    was not commenced by the issuing of a Commission under that Act, nor by

    the report made by the Conlmissioners, nor by the filing of articles in the

    name of the Bishop of the Diocese in which the alleged offence was commilted,

    and service of the same on the accused ; but

    First, that the “su i t or proceeding” only commenced when the accused was

    served with a citation to appear a t a certain time and place before 3, ccni-

    petent Court to answer definite charges, as required by the 9th and 10th

    sections of the Act [I1 Moo. P.C. 339, 3441; and

    Second, that the limitation of two years, within the meaning of sectioii 20, a:is

    to be reckoned from t h e time of the service of the citation [ll Moo. P.C. 342,

    3431.

    Therefore, where application was made t o the Archbishop for a Commission,

    under the 3rd and 4th Vict., c. 86, to inquire into certain alleged heretical

    doctrines contained in sermons preached in November, 1853, by a Clerk in

    Holy Orders, and the Archbishop, in November, 1854, issued a Comaiisaioii,

    and the Commissioners reported that a przmmn f a c i e case existed against the

    Clerk, whereupon criminal articles mere exhibited and filed against him i n

    August, 1855, and afterwards, on the 5th of June, 1856, a citation, or ieyuisi-

    tion, was served upon the Clerk to appear before the Archbishop, a t a C c w t

    to be held in the Diocese, to make answer to such charges ; i t was Held : tfLat

    the service of the citation being more than two years after the preaching of

    the sermons (the alleged offence with which he was charged), the suit v a s

    barred by the 20th section of the Act.

    DITCHER 27. DENISON [1857]

    In this cause, the Appellant, the Rev. Joseph Ditcher, Clerk, Vicar of St i i t l i

    Brent, in the County [325] of Somerset and Diocese of Bath and Wells, on the ?Ut11

    of October, 1854, preferred a complaint before the Archbishop of Canterbury againsr

    the Respondent, the Venerable George Anthony Denison, Archdeacon of T a u x o n

    and Vicar of East Brent, in the same County and Diocese, for having in three

    sermons preached by him in the Wells Cathedral on the 7th of August, 1853, the

    6th of November, 1853, and the 14th of May, 1854, respectively, affirmed or main-

    tained doctrine directly contrary or repugnant to the Thirty-nine Articles of

    lieligion.

    The question raised upon appeal did not affect the merits as to the soundnew or

    iinsounduess of the doctrine maintained by the Respondent in these sermons, but N as

    confined to the construction of the 20th section of the “ Church Discipline Act,” 3rd

    and 4th Vict., c. 86. By that section it is enacted, “ That ,every suit or proceeding

    agaiiist any Clerk in Holy Orders, for any offence agitinst the laws Ecclesiastical,

    shall be commenced within two years after the commission of the offeiice in respwt

    of which the suit or proceeding shall be instituted, and not afterwards.” On behalf

    of the Respondent, i t was insisted that the commencement of the “ suit or proceed-

    i n g ” [326] was referable to the service of the citation on him to appear before the

    Court at Bath, that being the only Court which had authority to adjudicate betwi-en

    the parties ; and tha t then it was, for the first time, that he was called upon, :n any

    “ suit or proceeding; ” the comniencenient of the suit being from tha t period. The

    case of the Appellant was, that the comntencement of the ‘‘ suit or proceeding ” was

    either the issuing of the Commission by the Archbishop, or, if that was iiot the

    commencement, then a t the time of the filing of the articles in the Consistory Court

    a t Wells; or if the ‘‘suit or proceeding” was not coninienced a t either of tliose

    times, then that the service upon the Respondent of the articles must be taken to be

    the commenceriient of the proceedings ; bcause they contained a charge against

    him, and, therefore, that that time must be held to be the commencement of the

    “ suit or proceeding ” in the cause.

    The facts of the case were these :-

    The Archbishop of Canterbury issued a notice, dated the 31st of October, 1854,

    719

    XI MOORE, 327 I ~ C N E R it. DENISON [ 18573

    to the Respondent, of h i s iiiterition to isrsue a Con inh ion of inquiry rut0 tlie groulldh

    of suc21 co~iplail l t under the Act, 3rd and 4th Vict., c. 86. This notice was served

    upon the Kespondeat, 011 the 3rd of Noxwuber, 1854, axid a Cornntission accordinqlp

    i sq ied ctii the 30th of Xoveiuber. 1854, and a notice w w issued and seyred on the

    21st of I)ecerttb:>r, 3854, by the C o ~ n ~ ~ s s i o n e r s , of the time and place of trieetirrg of

    the Cotitiiiisxioners. The Cornliiissiorrers iriet on the 3rd of January, 1855, a t Cleve-

    cloii, i r i the County of Somerset, within the Diocese of J3ath and Wells, and by cd-

    iournnient on the i t b , 5th, and 6th days of that uionth. On the 10th of Janudry,

    i 855, the ~oiiiniissioiie~.~ iiitiriiated their opinion, and e3271 reported that there werr

    prutrn furze grounds for further proceedings. Upon the receipt of this report i.nd

    evidence by tlie Arch~~ishop of Canterbury, the same \\as deposited iii hicc principal

    Registry. The Appella~it, however, being desirous of taking further proceedings

    cissinst the Respondent, an application was made by him to the Bishop of Bath

    aitd Wells to sign Letters of Request to the Judge of the Arches Court of C a n t e r ~ ~ r y

    to hear aiid deterinine the coniplaint under the provisions of the ‘‘ Church Discip-

    line Act,” hut he declined doing so ; articles were then drawn up, arid a copy served

    upon the Itespondeut, on the 5th of August, 3855. Application was then made to

    His Grace, to constitute a Court under the 3rd and 4th Vict., c. 86, see. I, and to

    give riotice to the Respondent to appear before him. The Archbishop, however.

    declined to proceed any further in the matter, and an tipplication was then made tu

    the Court of Queen’s Bench for a ~ i ~ a i i d a ~ ~ u s to conipd hiin to proceed (reported, 6

    Ell. and Bla. 546, 557). On the 22nd of November, 1855, a rule o&‘ was granted

    lw tlie Court of Queen’s Bench, which was made absolute on the 24th of January,

    1356, arid oil the 1!ith of April, 1856, tlie rule was made peremptory. In May,

    3856, the ~ r c ~ ~ b i s l i o p made a returri to the rule, stating that he had cited the Re-

    xpondent to appear before him in the Coimnon Aall of Doctors’ Comniuirs, London.

    This return to the rule was, on the 6th of May, 1856, quashed by the Court of Queen’s

    Bench. who decided that the A r c h ~ i s ~ ~ o ~ ~ ought to have cited the 1 ~ e s ~ ~ o i ~ d e n t in the

    Diocese of Bath and Wells, iirid the rule peremptory was enlarged. On the 6th of

    dune, 1856, the Archbislrop made another return to the rule, to the [328] effect that,

    he had cited the Respondent t o appeMr before him a t Bath, in the Diocese of Bath

    and Wells. t o the proceeding by i i ia i~di~ir iu~.

    op, by a citation, o r iequifiitiori, under I is

    hand cited the Respondent to appear before him at the Guildliall a t Bath, oii the

    23nd of July then next. This notice was served upon the Respondent on the 10th of

    Jiiire, 1856. The Respond-

    erit apllenred before the Archbishop under tlie following protest: That the “ suit

    or procet ding ” (if atty) then pending before His Grace the Arclibishop of Canter-

    b ~ y , mas c o ~ n ~ e i ~ ~ e d o r instituted, by the service upon him, the ~ e s p o ~ d e n t , 011

    the 10th of June, 1866, of a certain instrument in writing, or citatioii, under the

    hand of the Arc~ ib i s~~op , dated the 5th day of that month, and calling upon him to

    tippear a t the Guildhall, in the city of Bath, either in person o r by his agent duly

    appointed, at 11 o’clock in @e forenoon of the 22nd of July, 1856, then and there

    to make aiiswer to certain articles therein alleged to have been filed iri th,) Registry

    of the Diocese of Bath and Wells, aiid of which articles? i t mas therein alho alleged

    that it copy was served upou him, the Respondent, 0.11 the 4th of August, 1855 ; tBat

    the aiticles did riot set forth aXJy itlleged offence, which was the subject of inquiry

    hefore the ~ o n ~ i ~ ~ i s s i o n e r x , as having been c ~ ~ n i n i i ~ t e d by him, the ~espondel i t , withiii

    t n o years of such the conimenc rnent or institution of the suit, according to the pro-

    visions of the Act, 3rd and 4th Vict., c. 86, and, therefore, tlie party accused coulcl

    not be called upori to inake answer to such articles; and subject to E3291 such pro.

    test g:kve a negative issue to the articles. This protest was overruled, arld the Srch-

    1,ishop with his Assessors then proceeded to hear the cause ; and after a lellgthene~l

    Iicaring, finally declared the articles to be sufficiently proved, and a senterlce of

    deprivation pronounced against the ~ ~ s ~ ~ o n d e i i t .

    From this sentence the Respondent appealed to the Arches Court of Canterbury.

    The -IppelIatit objected, that it was not competent to the Court of Arches to enter-

    tain the appecbl, arid the Dean of the Arches sustained this objection, arid dismissed

    the appeal. The R e ~ p o ~ d e n t then applied to the Court of Queen’s Belich for a

    mnndalilus, aud that Court, on the 28th of January, 1857, directed a n ~ ~ n d a m ~ s to

    720

    The RcspondeiIt was 110 ptir

    On the 5th of June, 1856, the Archb

    The Court met a t Bath, or i the 22nd of July following.

    UITCHER I f . ~ ~ ~ 1 ~ 0 ~ [1857] XI MOORE, 330

    issue to the Dean of the Arches t o entertain and hear tlie appeal, on tlie ground,

    that the Court of Bath and Wells was a n inferior Diocesan Court, and that the

    Archtkhop was only itcting as Bishop of Bath and Wells, pi-o hac oice, and t h t

    the appeal under the 3rd and 4th Vict., c. 86, properly lay to the Court of Arches

    (see report, 3 Jurist, N.S. 439). The appeal in the Court of Arclies was afterwards

    prosecuted, and in the month of April, 1857, came on for hearing, when Counsel

    UKI behalf of the Respondent insisted, that the validity of tlie protest should

    be argued and decided in the first instance; and acceding to that applicatioil, t l i p

    Dean of the Arches (the Right Nan. Sir John Dodson) assigned to hear in the Erst

    instance arguments on the objection on the ground of liniitatiori of the suit Toy lapse

    of time set forth in that protest; ;and af ter hearing the case on that point only,

    pronounced on the 23rd of April, 1851, for the validity of the protest, and tiis-

    rtiissed the Respondent [330] from all further observrtrice of justice in tlie suit, iwf

    made no order as to costs.

    The ground of the protest so susrained by the Judge of the Arcliex Court was

    to the eff ct, that tlie Articles which the Respondent was called upoir to iinsner *t

    Bath, did not set forth any alleged offence as having been conirnitted by the Re

    spotidexit within two years of the com~iiencei~ent or iristitution of the “suit or JQ-O-

    ceeding ” (reported, I Deane’s Ecc. Reps. 334).

    The present appeal was frGm this decree ; the sole question raised being, w I ie t l ic~

    the sentence of the Dean of the Arches was riglit in sustaining the validity of tile

    objection above set forth iii the protest of the Respoiideiit, that the suit was ha, led by

    section 20 of the Act, 3rd and 4th Vict., c. 86, by lapse of time.

    Appe1lairt.-Tlie decision of

    the Court below raises new and iiiiportaI~t question : whether in proceeding againat

    a clergyman under the ’‘ Church Discipline Act,” 3rd and 4th Vict., c. 86, tlie period

    of two years, limited bv the 20th tion, for taking proceedings, is to be reckoned

    from the coriiniissioi~ of the alleged offence, or whether it c o ~ ~ i ~ i e n c e s at the ibsuirig

    of the Commission, or upon tlie filing of tlie articles, or, as litis bem held Iiy the

    Judgc of the Arches Court, it commences on the service of the citatioii upoii tlie 1)ar-y

    accusttl. What IF, t h t h

    coi~~~y~ei~ce t r i~ i i t of the proceediIi~s? Our coiitention is, that the issuirig of the Coli+

    iiiihsion of inquiry, under the 3rd section, 13311 is the co1iiineiicem:nt of the ‘. suit

    or proceeding,” niexitioned in the 20th section, and that in this case the t n o pears

    limited had not espired when the proceedings weie taken. The niaehineiy, so to

    call it, of the Act is this : If the Coirrxnissioners in their report are of opiiiion f t a t

    there is ground for further proceedings, then it is competent to the ljisliop to send

    the case for trial, at any time after the report, and that the first proceeding is the

    filing of the articles. And when that course is adopted, then me coritend that the

    iiling of tlie articles must Le deemed to be the cwiniencenieiit of tlie +‘sui t ut’ pro-

    ceeding.” The 3rd, 6th, 9th, and 13th sectioiis shorn what IS intended by the P ord

    ” proceeding ” irientioned in the 20th section. It is analogous to the issuing of a

    subpoena in the Court of Chancery, and the suiiig out of a writ at Coniniuii law,

    w1iic.h constitute the coniiiiencerneiit of a suit o r action, and by this Act the coui-

    iiienceiiient of the I ‘ suit o r proceeding ” is f,ither the issuing of the Coiyiiiiis~ion, or

    hervice of the articles. In the present case the service of the citation to appear in

    Doctors’ Coniiuons, which followed the issu iiig of the Commission, and tlie tiliirg

    and service of the articles, was the third step to be taken, aiid cannot be called the

    (’oiiiiiti~rice~iilleiit of tlie (‘ suit or proceeding.” The caws of the Bzshop 01 Lttwoin v.

    ntiy (4 Notes of Cases, ‘ B O ) , Bruoks v. C7esaweEl (4 Sotes of Cases, 429). and The

    Aislirip or Urr e f o i d 17. 1 - - 7 1 (2 Robcrts EGG. Rep. 3%), are distiiigurslia1,ie froiii

    tlie present. They were decisioiis in cases which had (~n31e before tlie Archei Court

    by Letters of Request, issued by tlie Bishop. Even if these authorities caii be held

    to apply to proceedings under a Co~iimissioii, pet we insist that the decrei [332]

    appealed from is erroneous, as the filing of the articles, in any circunistances, must

    be taken to have been the cominencei~ient of the p r ~ c e e d i n ~ s .

    Th. Phillimore and Mr. Coleridge, for the Respondent.-The “ Church Diicipline

    Act,” 3rd and 4th Vict., e. 86, has a threefold object: first, t o afford a Council of

    advice to the Bishop; secondly, to effect an improveriient in the Trihuiial and the

    procedure of the Diocesan Courts; and lastly. to f ix a limitation of time within which

    S i r Fitz-roy Kelly, Q.C., and Dr. Bayford, for th

    I n effect, the whole question is narrowed to this point.

    721

    XI MOORE, 333 DITCHER v. DENISON [1857]

    proceedings can be taken against a Clerk in Holy Orders. It is upon the latter

    point only that we have to deal with it here, and we contend that the 20th section

    of the Act is clear and unequivocal in its terms. It was passed to remedy defects

    which existed under the Ecclesiastical law, whereby a charge of a criminal nature

    inight be held, in terrorum, over a clergyman, for an indefinite time. The . nly

    difficulty suggested arises from the use of the word “proceeding:” that word is,

    however, used partly in it popular and partly in a technical sense. Sherwood T.

    Ruy (1 Curteis’s Ecc. Rep. 173) and upon appeal, R a y v. Sherwood (1 Moore’s P.C.

    Cases, 353), are conclusive authorities that the service of a citation is the t rue win-

    Iiiencement of a suit in the Ecclesiastical Courts. These decisions were made before

    the passing of the Church Discipline Act, and i t is apparent tha t the words liere

    used, having in view the object of the Statute, are to be construed according to the

    practice and usage of Ecclesiastical law. A suit in the Ecclesiastical Court com-

    mences by a citation, S?ierwood v. R a y [I Curt. E.R. 1731. So i t is by the Civil law,

    Domat’s CiTil Law, B. IV., Vol. 2, p. 658 ; The Code Napoleon; The American [333]

    Code. At

    Common law a notice of action is not the commencement of an action. As this is

    a penal Statute, carrying into effect a severe penal Act, the 13th of Eliz., c. 12,

    relating t o the Articles of Religion, i t must, by the universal rule of law, be con-

    strued strictly and literally against the par ty enforcing its provisions. If there is

    ally doubt or ambiguity arising from the language of the Act, i t is not t o be strained

    t o the prejudice of the par ty ikccused, but must receive a liberal construction in his

    favour. Dwarris “ On Statutes,” p. 646 (Edit.

    1548), Henderson v. Sherborne (2 Mee. and Wels. 236), Proctor v. Mainwamng (3

    Bar. and Ald. 145). Unless the proceedings are to commence by the citation, there

    is really no limitation atf all provided by the 20th section of the Act, 3rd and 4th

    Vict., c. 86. Here the

    first proceeding taken, was when the Respondent was served with the citation dated

    the 5th of June, 1856, to appear and answer the charge, which was more than two

    years after the acts complained of were done. Being a Statute of Limitation i t

    must be construed in conformity with the decisions of the Courts of Common law, 111

    [construing] other Statutes of Limitation; which have always been in favour of

    the limitation. Green v. Rivett (2 Salk. 422), Murray v. The East India Compmy

    (5 Bar. and Ald. 204), ,Short v. M‘Carthy (3 Bar. and Ald. 626), Rhodes v. Smrthurst

    (4 Mee. and Wels. 4 2 ; S.C. 6 Mee. and Wels. 351), The East Zndk Company v. Odit-

    churn Paul (i Moore’s P.C. Cases, 85), 2’olson v. Kaye (3 Brod. and Bingh. 217),

    The Imperial Gas Conz-[334]-pany v. TJLC Lonclom Gas Colrtpamy (10 Exch. Rep. 39),

    Kennet and Avon Canal C o m p n y v. The Great Western Canal Company (7 Q. Ben.

    Rep. 824), Pott v. Clegy (16 Mee. and Wels. 321), Granger v. George (5 Bar. and Cr.

    149), Boloell v. Y o m g (5 Bar. and Cr. 259), Battley v. Faudkner (3 Bar. and Ald.

    288). Hovenden v. Lord Annes-

    l ey (2 Sch. and Lef. 632), S m i t h v. Fox (6 Hare, 386), Freake $7. Cranefeldt ( 3 Myl.

    arid Cr. 499). They referred also to the following authorities upon the construction

    of the Church Discipline Act. Bluek v. Rackhanz (5 Moore’s P.C. Cases,.305), R e

    Monckton (3 Notes of Cases, Suppl. p. lv.), Bishop of Hereford v. T-n (2 Roberts’

    Ecc. Rep. 59.5), Brookes v. Cresswell (1 Roberts’ Ecc. Rep. 606), Bishop of Ltncoln v.

    Day (4 Kotrs of Cases, 299); and ils to the manner of proceeding under that Act,

    cited The Deun ot York’s case (2 Q. Bell. Rep. l), T h e Quee?~ 17. T?ie Archbishop of

    Canterbury (6 Bla. and Ell. 546).

    No suit is said to be coninienced till the accused is actually summoned.

    Bacon’s Ahr. tit. ‘‘ Statute,” (I.) 9.

    But that section clearly limits proceedings t o two years.

    So i t has also been construed by Courts of Equity.

    The Consideration of the judgment was postponed, and now delivered by

    The Lord Justice Knight Bruce (6th Feb., 1858).-This is an appeal from a

    decree or definitive sentence of the Court of Arches, pronounced on the 23rd of

    April, 1857, in a cause of appeal before that jurisdiction, to which the parties were

    two clergymen of the Diocese of Bath and Wells; one, Joseph Ditcher, the Vicar

    of South Brent, in Soniersetshire, the Appellant here; the other, George Anthony

    Denison, Vicar of the [3%] neighbouring parish of East Brent, and Archdeacon of

    Taunton, the Respondent here.

    It appears that the Vicar of East Brent preached

    and published in the years 1853 and 1854, certain sermons which the Vicar of South

    732

    But in tha t Court, their positions were reversed.

    The controversy arose thus.

    DITCHER 2’. DENISOK [1857] XI MOORE, 338

    Bin n t disapproved ; whereupon (tlie preferments held by the Vicar of East Hrmt

    bciiig in the gift of the Bishop of Bath and Wells, in right of that See), Ditclier, the

    Appellant, in October, 1854, made formally to the Archbishop of Canterbury, under

    the Statute, the 3rd and 4th Vict., c. 86, called “The Church Discipline Act,” a

    written application or complaint.---[His Lordship liere referred to the steps :hat

    hiid been taken, which a re fully detailed in the stateiiie~it of the case, and proceeded.]

    -The only point decided in the Arches Court by the decree, or sentence, under

    app a1 having been that of tinre, the question is, whether the Appellant was barred,

    and the Respondent protected by the 20th section of the Act in question. It is on

    this Statute that much, or everything, turns here at present; whether under it,

    and in pursuance of it, the Archbishop had jurisdiction or authority to pronouiice

    the decree or sentence of deprivation pronounced at Bath. which (reversed by the

    Court of Arches) the Appellant by the preseiit appeal, seeks to set up again; for no

    other point has been argued before us. The parties have reserved themselves i pon

    every other part of the litigation (in the event of a different view being taken here

    from that taken by Sir John Dodson), for a future discussion, or future discussions,

    here or elsewhere, or both elsewhere and here :-the Respondent continuing to [336]

    reject all i inputat~(~ri of heresy, while the Appellant still maintains that the im-

    p .ached sernions exhibit heterodox opinions. We, however, have only to endeavour

    to reach at a proper conclusion as to the sufficiency, or insufficieiicy, of the alleged

    bar by tinie. under the 20th section of the Church Discipline Act.

    First, then, what is the t rue reading, and what the meaning, of that section,

    and iiiore especially its coinmeiicing paragraph? A question upon which, if c f

    easy solution, i t i s not likelv that two such competent interpreters as the Judge cf

    the Consistory Court of London, and the Dean of the Arches, would have differed.

    Section twenty i s in these ternis: “ And be it enacted, that every suit o r proceed-

    ing against any such Clerk in Boly Orders for any offence against the laws Ecclesias-

    tical, dial1 be ~on~menced witliiii two years after the co~i~mission of the offence in

    respect of which the suit o r proceeding shall be instituted, and not afterwards:

    Provided always, that whenever any such suit or proceeding shall be brought in

    respect of an offence for whicli a coiiviction shall have been obtained in any Court

    of Com~noi~ law, such suit or proceeding may be brought against the person con-

    victed at any time within six calendar nioxiths after such conviction, although more

    than two years shall have elapsed since the commission of the offence in respect of

    xdzich such suit o r proceed in^ shall be so brought.’’ The words just read a r e found

    in a Statute containing twenty-six sections, every one of which has rewived froin

    their Lordships great and prolonged (I had drnost added painful) attention ; for,

    probably, no [337] Statute ever in II stronger degree riyuired that irot any portion

    should be judicially construed without knowing and seighiiig the whole.

    I t cannot. in the first place, escape observatioii, thitt “ su i t ” is a word propeieip

    of less exteirt and less general applicability, t h m “ proceeding,” o r that, possibly,

    every suit may be correctly termed a proceeding, though not every proceeding, a

    suit. It is also a good general rule in jurisprudence that one who reads a legal

    document, whether public or private, should not be prompt to ascribe, should pot,

    without necessity or some sound reason, impute to its language tautology or super-

    Nuity, and should he rather at the outset inclined to suppose each word intended to

    ha re some effect, or be of some use.

    It is plain, however, that where there is a report, that report tnubt follow a

    Coiiiiiiissio~~, and, of course, precede a suit foundrd thereon : but the word “ pro-

    ceeding ’’ comes in the 20th section after the word ‘‘ suit.” The 13th section, cer-

    tainly, enables a Bishop t o dispense with a report froin Commissioners, so chat

    there may be a suit under the Act without a report, and, probably. also without a

    Comnnrission. -4s to the word (‘ or ” occurring between ‘‘ suit ” and ‘( pi-oceeding,“

    i n the 20th section, it is not, perhaps, immaterial to bear in mind the various pur-

    poses to which (( or ” is applicable in the English language. The word ‘‘ proceed-

    ing ” is, as a substantive, used in two other sections (the 17th and 23rd) ; the word

    “ proceedings ” i n the 7th, 13th, and 14th sections, and elsewhere in tlie Act.

    In the 7th section, the word ‘I proceed ” seems to deserve attention, as may also

    the expressions “ preliminary ” and “ further ” in the 4th section ; and per-[338]-

    haps i t is worth while to notice that the 17th section seemingly employs “ procerd-

    723

    XI MOORE, 339 DITCHER v. DENISON [ 18 5 71

    iiig ‘’ in opposition to “ inquiry,” and to remark the purpose to M hich “ ~ J ~ O C T ~ ~ I I I ~ ”

    is applied in the latter half of the 20th section. The expression “ for aiiy offence ‘’

    in that section inust also be considered in couiieetioii with the 3 rd section, mhicli

    may, without a ‘( charge,” be brought into operation and activity up011 riiinaur

    merely : for so we suppose iiiust be interpreted the words “ scandal or evil report. ’

    Possibly, however, ‘‘ Cornmission ” 01“ “ proceeding by Commission,’’ or ‘‘ proceeding

    Ly way of Conin~issioii,” may be the mealring, or one meaning, of “ proceedilig ” iii

    the 20th section; a readiiig which, if it does not require, does not pioliibit the

    attributing to the Act an ilitentioli that a suit should not, 111 any case. Ije 20111-

    ineuced after the eiid of the two years. If the framers had tha t iiiieiition, they

    iii;iy well have deemed i t prudent to forbid (not merely by implication) the issuiug

    of a Commission under which no report could bring a n erring o r a slaiidered clergy-

    inail for conviction or acquittal before a n Ecclesiastical Judge. Having, with S L ~ I

    aid as these and sonw other considerations might afford, weighed the whole of tlie

    Statute (not, of course, without refeieiice to the i’articular nature of the subje-ts

    xiill which i t is coiiceriied, and the state of tlie law on those subjects i i h it stood

    inmiediat ly before tlie paasiiig of the Statute), their Lordships (differing, as ihey

    apprehend, on this poiiit from the Most Iteverelid Prelate, aiid one, a t leaqt, of His

    Grace’s Assessors) have come to the conclusion, that the phrase ‘‘ every suit or 1)ro-

    ceediiig ” in the 20th section, unlesa the phrase nieans “ every suit ” merely, aiid

    riothiiig else, iiieaiis ‘‘ every suit and every pro-[339]-ceeding-,” nor less nor more .

    (As if, iii effect, instead of ‘‘ every suit or proceeding ” ’‘ shall be coniiiienced ~ i t h i i i

    two years,’’ ‘‘ and iiot afterwards,” the Act had said ‘‘ not any suit, 1101- any lpro-

    ceediiig ” “ shall be coinnieiiced, unless within two years,” and had omitted ‘* : rid

    ,lot afterwards.”) Their Lordships cousider also that the words “ suit or proceea-

    ing, where tliey occur secondly, thirdly, fourthly, aiid fifthly, in the 20th sectioii,

    inust be Loristrued of course by alialogy to the construction proper to be put on tlie

    three words where they firat occur in that section.

    Before entering on the next question, tha t relatirig specifically to the decree o r

    sentence under appeal, it may be well to observe that, notwitliataiidiiig the loose and

    inaccurate language to be found in the Act, tlie Legislature, as their Lordships

    think, has iiiade a sufficient distinctioii between a ‘‘ Suit,” properly so called, and

    tlie preliiiiiiiary inquiries out of which a suit iiiap arise. A Clerk iiiay, illdeed. witli

    the concurrence of his accuser, obviate the necessity for a suit by aul)niitting to

    a sentence on the result of the preliminary inquiries; but, unless lie tliiiiki fit to do

    so, he has a right to have the case against him decided, crciindtcrri nlle

    butt/ , in a suit regularly constituted.

    This ‘‘ cause ” (so i t is teriiied in sectioit 11) may either be heard before tlie Bishop

    with Assessors or may be sent by Letters of Request, to the Court of the Arclibishop.

    But it is hardly denied that, if the matter be sent to the Archbishop’s Court, the

    suit is not comnieiiced before tlie service of the citatioii ; mid, if so, i t seems to follow

    that, if the sui t be before the Bishop, i t must be held to coninieiice with the [340]

    proceeding before that Tribunal which is most analogous to the citation in tlie

    Archbishop’s Court ; for tlie Legislature can hardly have intended that tlie period

    limited for the institution of the suit, should vary according to the Court ,in which

    i t is heard. We then come to the question, whether the “ suit ” in whirli TT as pro-

    nouuced the decree or sentence of deprivation l)ronounced ut Bath iii tlie year 1856,

    wac: ‘‘ commenced within two years after ” the offence, o r any offence iii iespect of

    which tlie ‘‘ suit ” was (‘ instituted, and no1 afterwards ; ” or, in other words, n hetliei.

    tliere was a ‘‘ suit ” “ coiiimenced witliiii two years after ” tlie Respiident liad

    committed any offence, or the imputed or alleged offence, charged agaiuat hini.

    This question, stated in the ternts tha t have been used (because the decree oi

    sentence of deprivation was made, was pronounced, in a ‘‘ suit,” and could have 110

    validity unless made in a “ su i t ” or pronounced in a “suit,”-aiid liecause i f

    unade or pronounced in a n ill-founded suit, i t cannot stand)-is one for the pur-

    pose of which their Lordships have been, and are, by the state of the evidence and

    the admissions, indeed, of the parties, enabled to dismiss from consideintion, :IS

    Sir John Dodson was enabled to dismiss every, if any, such enunciation of hetero-

    dosy-every, if any, such offence, as has taken place on the par t of the Respondent

    7 24

    . ..

    DITCHER v. DENISON [ 18 5 71 XI MOORE, 341

    since the year 1853. His conduct i n and siiice the year 1854 it is agreed that we

    must, and we accordingly do, regard as ~vliolly immaterial. If, therefore, the suit

    in controversy was not commenced before tlie year 1856, it mas ill-commenced, and

    the decree or sentence of deprivation must fail. Now, the Commission was issued

    iii the year 1854; the report was made and registered in the [341] year 1855 ; the

    articles were filed in August, 1855 J and tlie service of a copy of tlreni oii the Ke-

    spondeiit took place also iii August, 1855 : but iiot until April, 1866, or later, was

    there aiiy citation of him, or any requisition for him, to appear before aiiy Judge,

    or to appear anywhere. Tlie Appellant’s Counsel, however, have coiiteiided, that

    the Itespoiident was deprix-ed, in a “ suit or proceeding ” whicli they say was coni-

    rnenced by the Conimission, or by what took place between tlie Coriiiriisnion tilid

    report, or 1)y the report or its registration, or by the filing of the articles iii

    August, 1855, or by the service in tha t month of a copy of tliose articles 011 tlie

    Respondelit. Their Lordships, however, itre of opiiiioii with S i r Joliri Dodsoii,

    that this proposition is untenable. The report was not, the inquisitioii. or ill-

    restigatioii under tlie Commission, mas not, nor was the Comiii issiori, nor was tlre

    Appelltint‘s application to the Archbishop for a Commission, a suit, or the comirieiice-

    ment, or m y part , of a suit. The Commission and the iiiyuisitioii or investigation

    under it, were merely steps for obtaining the opinion, aiid the report mas iiierely

    tlie opiiiion so o,btained, of five clerical geiitlemeu, iii tlie selection of riot, one of

    whoiii liacl the proposed Reus a voice, wlicther tliere was primu f n c i e ground f o r

    instituting :I suit. Neither tlie report made, iior aiiy report capalile of beiiig iriede

    linder i l i e Coiiiiiiission; 1 1 0 registration of the report, or of any repor t ; 110 a p

    proval of it, amounted, or could have aniouiited, t o aii adjudication of heresy or’

    error of any Iriird against the lteapondent. He could not lawfully, before tlie year

    1856, have been deprived, puiiislied, or cerisiired without liis consent, iior in, iior

    after ttie year 1856, was it, independently of vliat took place in April, lP56, o r

    tlie fo11owiIig [342] inoiitli, possible, witliout his consent, to deprive, 1)uiiislr. o r

    censure him .

    Then, ihs t o tlie filing of the articles in August, 1855, and the service iii the

    same inontti of a copy of them on tlie Respondent, each of these steps lie was err-

    titled to disregard until served with a citation or requisition uiider the 9 th sectioii

    of the Art. in tlie manner directed by tlie 10th section ; as loiig as tliere wits no such

    service of a citatioii or requisit ioii, tlie articles (though preveiiting Letters o f

    request) TTere, in truth, as against Iiirn, LL nullity. Tlie articles--iioi iiitituled iii

    aiip Court. iiot headed, ended, or described, as belonging to or connected with any

    Court, purported i o proceed from the Arclibisliop, a s ” l’riiiinte of all Engleiid, aiid

    Metropolitan.” They did no’t cite, coninia,iid, require, or invite the Respondent’s

    atteiidaiirc or appearaiice in any Court, or a t iiiiy place or time, nor liad any date

    of place or time J nor in fact until soriie time after March, 1856, was tliere any cita-

    tion or requisition such as directed by the 9th sectioii, or sucli as to require or iiiakcs

    necessary aiiy appearance or attention upoii tlie pikrt of the Archdeacon, o r to

    render a u y such step material for his protection or to his interest.

    And tlieir Lordships, though iii the present instance differing t o soiiie esteiit

    froni tlic very able Judge who advised the Archbishop on the occasion of tlie Bat11

    sentence, t y p e in tlie opiiiion tlieri declared 1)y that eiiiiiieiit lawyer, tha t tlie word

    “ suit,” used in the, 20th section, “ n-leans a suit in tlie Arches Court, or aiiy otlier

    Court of t l i n t description.” Dr. Lushingtori added tlie words (‘ properly ansmeriiig

    to the terrlrs in mhich i t is espressed; ” but lie did not, we believe, by those words

    intend i o cliaiige the sense [343] of wliat iimiiediately preceded tlieni. And, if

    we do not, think with hini that (to borrow again his language on tlie same occasioir)

    (‘ in n suit in the Court of Arclies, ttie issuiiig of tlie citation is tlie corrirneiiceiiient

    of the suit,” we tliiiik that tlie service of tlie citatioii is so.-[His Lordship Iicre

    referred to the j u d p e i i t of the Right I-Ioii. Dr. Lusliiiigton, a t Bath, xliicli x a s

    iiirludrd in tlie trairscript of tlie proceediiig~-Tlie espression, however, “ tliiiik

    witlr l\iin,” that 1 tiaye iiwd, may be not exactly c2ccUrilTe ; for considering the cases

    of Z t ~ g T. .S / /e~ . i i~wd (1 Curteis, 173), arid J S h e i w m l T. Rriy (1 Moore’s I’.C. Cases,

    353). a11d the adiiiitted course of the Errlcsiasticnl Courts at Uoctors’ Coiiiruons.

    their Lordsliips deein it likely, that in ilie passage just read, from the judicial

    opinioii dtxlivered at Batli, ‘‘ service ” was said or iiiciiiit in the place of ‘‘ issuing ”

    c ‘) - i

    XI MOORE, 344 DITCHER u. UENISON [ 18571

    where the latter word occujs. The circumstance that, by the 13th section of the

    Act, Letters of Request are prevented from issuing after articles filed, as mentioned

    in the 7th section, does not appear to us to make the articles, or the filing of them,

    or the service of a copy of them, the conimencenient of a suit. They may, by the

    aubaequeiit service of a valid citation, or requisition, be drawn down, in effect, to

    the date of that service, but cannot, as we conceive, bring up that service to an

    earlier date.

    The rule, or maxini, ‘( Sempei a t ) dubau benigntola praeferenda,” is, we believe,

    as t rue in the law of England as it was in the Eiomari law, and the Statute before us

    is at once a law of criminal procedure as to the offences to which it relates, and a

    Statute of Limitations as to penal prosecutioiis. With reference to that character,

    the presuinption or inclination, [344] where presumption o r inclination can find

    place, ought to be, as their Lordships conceive, not against, but in farour of, the

    person charged with a n offence, and sued penally under it.

    And their Lordships are of opinion, that they construe the 20th section con-

    sistently with the rules and idiom of the English language, and ‘‘ omni conaiderata

    scrzptu~a,” agreeably to the spirit and general intention of this Act of Parliament,

    by holding, as they do, with the learned Dean of the Arches, that a suit was not

    instituted by the application for the Commission, or by the Commission, report,

    and articles, or by any one or more of them, or by the service of the articles on the

    Respondent ; that the suit consequently, in which the Bath judgment was pronounced,

    was not commenced, was not a ‘‘ proceeding ” begun, before April, 1856 ; tha t the

    Respondent not having been proved to have committed any offence after the year

    1853, there was accordingly no suit commenced within the time prescribed by the

    20th section; that the Commission and report fall to the ground, therefore, and

    become wholly worthless; that every proce,eding, if any, as existed before June, 1856,

    having thus, before June, 1856, failed, and become extinct, no such proceeding

    was capable of supporting or assisting anything done in or after June, 1856 ; and

    that as the necessary result of such a state of things, the proceedings against him

    subsequent to the year 1856, were altogether groundless and bad.

    We are not unaware of the inconvenience possible to arise from unavoidable

    delay between the issuing of a Commission and the making of a report under it,

    according to our reading of the Act ; but neither can we avoid seeing the mischief,

    equal or greater, as we [345] think, likely to arise, from holding that a penal suit

    may be instituted against a clergyman, founded on a report made twenty yearb

    before it. The Court of Queen’s Bench possibly has, and possibly would exercise,

    the power of interfering, a t the instance of an accused clergyman, in a case of long

    inaction, after the end of the fourteen days mentioned in the 8th section. That,

    however, is a point on which tlieir Lordships think that they may well, and ought

    to, abstain from intimating any opinion. It may be added, with reference to the

    Letters of Request mentioned in the 13th section, that i f they can be issued without

    a Commission, but not after the two years, or if the suit in the Court of appeal of

    the Province under the Letters of Request must be commenced within the two years,

    i t is difficult (if not impossible) t o conceive that i t was intended that a private

    prosecutor or promoter, or even the Bishop of the Diocese, should be allowed an

    unlimited time for commencing a suit after a Comniission and report. Construing

    the language of the Statute, as I have said, we feel somewhat less diffidence in

    differing from so high an authority as the learned Judge of the Consistory Court

    of London, than we otherwise should do, by reason of the early paragraphs (especially

    the second paragraph) of tlie opinion delivered at Bath by him, in favour of holding

    tlie Appellant not barred of his prosecution, by lapae of lime.

    It seems to be a just inference that the learned Judge was precluded from taking

    time for deliberation; nor is this all that tends to diminish our self-distrust. There

    is the weighty judgment now Ilefore us of that experienced and well-informed

    ecclesiastical lawyer, the present Dean of the Arches, and there are [346] previous

    jriclicinl opinions entitled to much corlsideration and respect, with wliich that

    juclglnent agreed: We may instance the cases of T h e Uzshop of Lincoln. V. Day (4

    Sotes of Cases, 290), and Brookes v. CressweU (1 Roberts. Ecc. Rep. 606)) and that

    of The Bishop o t Hereford v. T--n ( 2 Roberts. Ecc. Rep., 595, where probably by

    the way, a t p. 605, the word “ issuing ” should be “ serving ”), respectively, before

    726

    F ~ N ~ ~ ~ 9, ~ ~ I ~ ~ ~ N [18s8] XI ~ O O R ~ , 347

    Sir Herbert Jenner Fust and Sir John Dodson hiniMelf, t o which, perhaps, may be

    added Monckton’s case (3 Notes of Cases, Suppl. p. lv.) before Dr. Lushington.

    For the reasons tha t have been now stated, it i s their Lordships’ intention to

    report to Her Majesty that, i n tlicir judgi~~ent , he present appeal should be dis-

    missed, but without co&. Of course i t is understood that upon the question of

    ~ ~ e t e r o d o ~ y , the question whether the ~esp.ondei~t has at any time uttered heretical

    doctrine or conimitted any e c c l e ~ i ~ ~ s t i c a ~ offence, their Lords~~ ips have i n t i ~ a t e d

    no opinion.

    [News’ Dig. tit. ~ C C ~ E S ~ A S T ~ C A L LAW ; XX17111. PRACTICE AND PROCEDUBE ; 1.

    ~ a ~ ~ r ~ ~ ~ ~ . See ~~~~~~~ v. Simpsom, 1866, L.R. 1 Ad, and

    E. 281 ; Sheppard v. Bennett, 1869, 39 L.3. Ec, 1 ; Ray. v, Oxford (Biskop of) ,

    M i 9 ; 4 Q.U.D. 549; JuSitw T. ~~~~~~~ ( B ~ ~ ~ t ~ ~ ~ ~ of), 1x80, 5 A,@. 217.1

    S.C. 6 W.R. 342.

    E3473 ON APPEAL FROM THE SUPREME COURT OF VAN

    DIEMAN‘S LAND,

    MICHAEL FEKTOK and JAMES FRBSER,-A?~z~elZalats : JOBR STEPHEN

    H ~ ~ P T O N , - R e ~ ~ o n ~ e ~ ~ * [Feb. 3 and 4, 18581.

    The “ Lex et consuetudo I’arlinmenti ” applies exclusively to the House of Lorda

    and House of Commons, in England, and is not conferred upon a Supreme

    Legislative Assembly of a Colony, or Settlement, by the introduction of the

    Commor~ Law of ~ n ~ l a n d into the Colony L11 Moo. P.C. 3971.

    No distinction in this respect exists between Colonial Legislative Councils, and

    Assemblies whose power is derived by grant Prom the Crovn, or created

    under the authority of an Act of the Imperial Parliarnent 111 Moo. P.C.

    3977.

    Iieillny’v. car so^ (4 Moore’s P.C. Cases, 63) reviewed and upheld [I1 Moo, P.C.

    395, 3961.

    This was an action of trespass brought in the Supreme Court of Van Dieman’s

    Land by the ~6spondent , the ~ O ~ i ~ t r ~ I ~ ~ r - ~ e n e r a l of convict6 in tha t Island,

    against the Appellants, Fenton, the Speaker, and Fraser, the Serjeant-at-Arms,

    of the ~ g i s ~ a t i ~ e Council of Van Dieman’s Lmd. The declaration compla ine~~

    that the Appellants unlawfully nsmultcd, seized, and imprisoned the Respondent,

    The Rppeliants served in their defences, but respectively pleaded special pleas of

    justification, setting forth, in substance, the following material ftkcts ; tha t before

    and during the aileged wrongs, a Session of the Legislative Council of the Island of

    Van Dieman’s Land was being holden at Hobart Town, in tha t Island. That the

    AppeIlant, Fenton, was a member and the Speaker of tha t Council.

    That the Appel~ant, Fraser, was the Se~jeant-at-Ariiis attending E3481 the

    Council. That on the 14th of August, 1855, i t was resolved by the

    Council, that a Select Committee of certain of its m e ~ i b ~ r s should, in ac-

    cordance with the standing Rules slnd Orders of the Council, be appointed to inquire

    into and a c e r t a i n the t ru th of certain alleged abwes in the Convict Department,

    the same being matters within the province of the Council to inquire into and

    ascertain by means of such Select Committee. That on tha t day the Select Cbrxl-

    mittee was duly appointed in pursuance of tlze resolution. That before the

    wrongs, in the declaration alleged, i t was resolved by the Council, that the Select

    Committee should have leave to send for persons i n reference to the inquiry. That

    Thomas George Gregson, a member of the Council, was duly appointed and elected

    Chairmen of the Select ~ o ~ i t t ~ e . That the R e s p ~ n d e n ~ was a material and

    riecessary witness i n the inquiries, and tha t he had notice of all the premises,

    That the Chairman duly summoned the Respondent personally to appear before the

    * Present: The Right Hon. The Lord Justice Knight Bruce, the Right Hon.

    T. I’einberton Leigh, the Lord Chief Baron of the Exchequer (The Right Hon. S i r

    Frederick Pollock), and the Rig& Eon. The Lord Justice Turner,

    727

    I_ _-_ __ _ ~ _ _ I _ -- - ~ -- - ___- ~ i _ _ _ _ l __I_

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    Comments

    Ditcher v. Denison (United Kingdom)
    (Jan 1, 1857)