The Express.
London, England, 1849-02-19 00:00:00

3 _

plea ought to negative that mot. He Mei ealmillinl thee '
the plea did not show that the delimited bed done •
that
ntr act m neoeseary and within his power alkali& die
of
Peaesek, ea the ether hand, submitted that it was
men to the defendant to rejoin the shares ea the sot
forth in the pha, and that the subsequent wee
matter which :^ght to come by way of replication, from the
plaindfh, if any such took pleas As to the acts, they no
doubt mintemplatad the ma of 'Wants bo'ding shares to
nitro' they had devolved, but sot the cue of an infant en-
tering into a biading contract with a company, in derogation
of the general law that infants could not contract.
Mr. /standoff having replied,
lirffiaron Puke gave judgment in favour of the defendant
This was an action for calla spinet a shareholder, and a
she holder was one who must have subscribed the deed et
the , and be registered on its books as such. The
term subscribed imported a contract, and the act, therefure,
which gives this summary remedy against all sharch lders
must be taken to mean only thine who were capable el
becomidg such by law—by means of a contract They never
Gould here meant to include infants who by law are in-
capable of making any contracts, but there were eases no
doubt fa which infants might become the holders of shares
withoutentering into any contract with the company, all of
which did not apply to this which was the case of an
original subscriber, who contracted with the company in his
own person. Thedisafiirmance need not be atter an infant
comes of age, nor need he allege that he has not ratified the
contraM for those are matters which ought to come
from the plaintiff by way of replication ; so also, if he hu
tiled the profits, that ought to be replied, and as for his
not having done all that he ought to have done to disaffirm
the contract, it is difficult to see what more he could d,), as
he could not go to the omoe and scratch out his name from
the register. For these reasons I think that there must be
Judgment for the defendant.
Ifir. Baron Rolfe and Mr. Baron Platt oncurred.—Julg-
sent iter the defendant.

ARCHES COURT.—SArrsora.
Before Mr H. J. flat.
THE VICAR or Sr. Jun AND HIS BISHOP—JUDGHENT.

Goiratan o. 'rue Bream. or Exerffit.—There were two
questions in the proceedings before the court in this case;
the iiistmas, bad the bishop a right to ebutinue his examink-
doe erp clergyman who applies for induction to his living
ashes 28 days from his application. Judgment was now
given eit, this point.
The putt said this. eat a proceeding promoted by Mr.
Gorham, late YIN/ of St. Just, in Penwith, in the county of
Duce, in the diocese of Exeter. limiest the bishop of that
likeillOo far refusing to institute him in the living of' Bramp-
ilard Speke, in the county of Devon, in the same diocese,
which had been presented to him by the crown, through
the Lord Chancellor. This was a question of en unfit-
Tient ecourrenos ; indeed, it was one that Lad not been
met with by the judge during tke whole course of his experi-
Mee and, in referring to cues, he had not met with one
that had presented itself for many years. He had referred
back to 140 years, and he could find no such case to have
been brought before the court. It is a question which rises
incideaMily. In the course of these proceedings the merits
of the case have not yet been entered into, and therefore the
court his only to consider what is now before it, and if it
can be austained, it will put a stop to all further proceedings.
Though there have been no proceedings in this court for
many yews, they were well known in former years. which is
proved by books of prudes and also in 1. Clark's Practice,"
and there was at this time a mode of practice pointed out. It
appears this gentleman has been refused to be instituted in
his living to which he has been appointed,
and therefore. the court is open to his applica-
tion for relief. l'ho proceedings are new, and
will give rise to further proceedings of some importance. It
appears this gentleman was appointed vicar cf St. Just-on-
Paned& in 1846 ; in 1847 he was presented to the living of
Brampfbrd Speke, both in the diocese of Exeter ; he applied
to the bishop to be instituted, who stated hie desire to exa-
mine him before such institution. This did not take place
until the 17th Dec., 1847, which continued at various times
until March, 1848, upon which examinstion he refused to
institute Mr. Gorham in his living In July the same year,
a monition was brought In and an appearance given to it by
the bishop ; the object was to state all the circumstances sup-
ported by affidavits, that the bishop had refused to institute
him, at the same time calling upon the bishop to show cause
why he did not institute him in his living. The bishop then
appeared to the monition and stated the grounds why he did
not appoint Mr. Gorham. The material part of that act of peti-
tion is, the return the bishop made to it. The bishop states,
upon his examination he iour.d Mr. Gorham of utsound
doctrine, and more particularly referred to that doctrine in
reference to the regeneration by baptism ; in consequt nee he
refused to institute Mr. Gorham to his living, feeling it was
a sufficient cause for a refusal. Since then Mr. Gorham had
published a book ; among other things he states what passed
between the bishop and himself. He also sets forth the
various degrees he has obtained, &c., at college ; that he has
held livings from March, 1811; that he has discharged vari-
ous duties in several churches and dioceses ; that in 1846 he
was appointed to the living of Bt. Just on.Penwith, which
contained 7,000 gents, to which he was instituted without
any pre. ion' examination by the bishop; that upon bring
appointed vicar of Brampford Speke, he forwarded testimo-
nials to the bishop for his signature, which was refused, in
lance of his conaideriog him of unsound doctrine.
The rd Chancellor now issued his fiat; on the 13th
November the bishop began to examine him ; and on
the 17th December the bishop appointed to receive
him, when it was alleged that he was out of time
for examination according to the 95th canon ; that
indeed it had expired, that the 28 days had elapsed, and
he had forfeited the right to examine him, yet Mr. Gorham
attended the bishop, and underwent en examination, subject
to his verbal protest against that right. This continued until
March 1848, and ended in the bishop refuting to institute
him in his living. The question before the court was, had
the bishop the right to call upon Mr. Gorham for examina-
tion, according to the case set forth in the 95th canon, the 28
days having expired ? Has the bishop the right to proceed is
his examination after the expiration of the 28 days or is he
limited to that time ? The court could not take the protest
presented by Mr. Gorham into its consideration, for the
court had nothing to do with it. If the bishop delayed
examining him within the limited time, Mr. Gorham could
have issued his duplex guerilla to have compelled it,
or otherwise to be instituted in his living. It was urged
in argument by counsel that the bishop could not oontitne
his examination after the expiration of the 28 days ; that
the statute of limitation barred his right to do so, and that
although Mr. Gorham did consent to be examined, it was
a mere nullity; and counsel then tithed the court to pro-
nounce against the right of the bishop to continue his exam-
ination beyond the 28 days, and asked the court also to insti-
tute Mr. Gorham in Lis living. This was a case of tome im-
portance, both to the party asking for institution, ard t r the
bishop as to this right. If the argument used by counsel
was right, it would lead to important and serioua conse-
quences. It was asserted that a bishop could not inquire
into the conduct of a clergyman after the expiration of 28
days, whatever information he might have received es to the
conduct of the clergyman, whether he be an atheist, a Bo-
deen, or indeed in any other way of unsound doctrine ; but
that as a matter of courts, the bishop must proceed to insti-
tute him, with all these imperfections, Ii the 28
days have expired. This it was contended must
be done, even though the bishop, in the consci-
entious discharge of his duty, must the very next day
proceed to deprive him of that living that was a question
of most serious consideration to the church; it must go to
that extent, or it is good for nothing. A party presenting
himself for institution may have good testis iniala of
good condut ; yet this does not deprive the bishop of his
right to mann* the party presenting them, tot it is the
bishop's duty to satisfy himself whether he be a fit person
for the office. When Mr. Gorham was presented to the
living of St. Just, there was no doubt but the bishop was
saddled he was a fit and proper person, without further
examination, and confirmed him in that appoittment; and
the same course would have been pursued in this Instance if
there had not been something to induce the bishop to think
he was of unsound doctrine. The court had nut sufficient
before It to go into that question. But the bishop had ; and
abook had since been published which confirmed biro in that
view ; upon this the bishop was bound to melte the inquiry
in discharge of a public trust. It is not a new privilege
granted td the bishop; it bad been given to him for the pub-
lla the public benefit. The question is, what is
the mosaing we are to pat upon this canon—has the bishop
the right to continue this examination beyond the 28 days ?
The argument on the side of Mr. Gorham is that be cannot.
The court thought there was no prohibition to the continu-
ing of this examination beyond that time ; it felt there wee
no limitation to the statute, and the 95th canon could have
no reference to the statutes of limitation at common law,
which were disdactly defined and left no doubt behind them.
Various op had been referred to by counsel to sustain this
argtunent,lnt the wart felt they had failed. The set of 27
Geo. 111., e. 44, clearly defined that no family affairs can be'
brought into the Brclesiastical Court unless instituted within
do months, The court then quoted Godolphin, whose law
had been anted upon for centuries, and showed bow in the
earlier ages of the church history the bishops were benefited
by holding vacant livings, until the period of Archbishop
Langton, who defined a period which has been acted upon
ever since. Before thea there was no limitation, and this
rule laid the foundation of the 85th aeon, But the bishop
cannot be compelled to institute a person who is
not qualified for the office from a want of sound-
ness
of doctrine: the bishop under such circum-
stances may refuse to induct him. The court felt
it would be useless to go through all the works to prove this
right is vested in the bishop. The court would ask, sup.
posing a bishop was ill end could not undertake the exami-
nation of say party for the space of six months, was then a
person not qualified to fill the office of vicar, by • want al
soundness of doctrine, to be instituted because the 28 days
sitemaddouttottpyr:
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after the lapse of 28 days ? The court had no power at
present moment to institute Mr. Gorham in his liblz
forad it h non eonstat before it, beyond the
to show he was *fit and proper person to be inducted. It
could not think there wee anything of a sinister intention on
the part of the bishop, or that he would obtain any pecuniary
advantage by refusing to Induct Mr. Gorham. Neither did
it think Mr. Gorham bad been taken by surprise when the
bishop stated kis intention to examine him. lie went
through the examination, and what the rank may be it ie
imperdble far she court at present to say. 149 questions
were put to hint,;ead lurninet be bound by the result of that
examination. Under all the circumstances the court was of