The Sun.
London, England, 1858-11-24 00:00:00

LAW INTELLIGENCE.—Nov. 23.

. .
COURT OF PROBATE AND DIVORCE.
(Before a Common. Jury.)
MARCIDIONT V. MAACHMONT.
Mr. Sergeant Pigott, Dr. Deane, Q.C., Dr.
Spinks, Mr. Tindal Atkinson, and Mr. F. J. Smith
were counsel for the petitioner`; Mr. K. Macaulay,
Q.C., Dr. Phillimore, Q.C., and Dr. Swabey for the
respondent,
The petitioner, Caroline Maria Marchmont, prayed
for .a judicial separation froM her husband. Henry
Marchmont, on the groan& of, cruelty. She alleged
that he had treated her with great unkindness and
cruelty,. and had. extorted large sums of money from
her by threats and violence. Various acts of cruelty
were specified in the petition. The respondent de-
nied all the allegations of cruelty, and also pleaded
on donation.
Mrs. Marchmont was again put in the box this
morning, and admitted, in reply to Mr. Macaulay,
that her husband had-frequently remonstrated with
her respecting the wine she drank at dinner. He
would have preferred her not liaving any, but she
had, always been accustomed to take it.
Re-examined by Mr. Sergeant Pigott—l usually
took two or three glasses of wine and water with
my dinner. I rarely took any at other times. The
house at which we resided _in Percy-place is a
three-Storied house. I requested Mr. Marchmont
to give me his'opinion of my character a few weeks
before our marriage; and he wrote the • following
statement:—
"4.31 y dearest Caroline—As you wish to have my opinion
of you, I will candidly tell you that I think you kind, ge-
nerous, truthful, loving, benevolent, sympathising, for-
bearing, forgiving, gentle, devoted in friendship, and truth-
ful in affection. I love you above all the world. As to
myself, I am irritable, unkind, false hearted, jealous, harsh,
deceitful, changeable, proud, unforgiving, hasty, ungene-
rous, maliciouti, and utterly unworthy of that love which
you have so generously bestowed upon me.—l am, my
dearest love, yours living and dying,
" HENRY MARCHMONT."

(The reading of the document was received with
much laughter.) I threw some wine and water
over Mr. Marchmont after he had been saying
something very bad to me. He raised objection
to my writing to my friends. He would not let
the servant post letters for me, and all the letters
brought to the house were taken to him. His man-
ner was sometimes very mild. Our differences never
arose from my accusing him of going with
other women. I went to the shop in New-
gate-street in order to hide myself from him.
When he came to me there his manner was at first
mild, as it always was when people were near. He
threw the blame on me. During my illness in
Percy -place he said that if I insisted on having a
doctor he would write and tell my sister that I was
dying of some inexplicable disease.
Mr. J. P. Perry, clerk to the Lambeth Police
Court, proved that on the 10th June last Mr.
Marchmont was ordered to find sureties to keep the
peace- towards his wife for three months. It was
arranged between the parties that Mrs. Marchmont
should stay with Mr. Mitchell, the surgeon, but no
stipulation-was made as to the time she was to re-
main there.
On cross-examination he said that Mr. Marchmont
had asked for an adjournment, on the ground that
he had had no time to consult his attorney.
Mrs. Louisa Charlotte Davis—l live at Black-
heath, and am the petitioner's only sister. She and
her first husband, Mr. Locket, always lived on very
good terms. She married Mr. Marchmont from my
house. I saw her at Tunbridge-wells. She came
to my house two days before Christmas. She was
in a very nervous condition. She left me to return
to her husband on Christmas-day. When she came
tome on the 16th May she was also very nervous,
and her wrist was sprained She seemed to be very
unhappy. On the evening of the 24th May Mr.
Marchmont came. He said he wished to see his
wife, and that his child was dying.. As soon as Mrs.
Marchmont saw him coming, she jumped out of the
window and begged the servants to hide her in the
coal cellar. By her request I went to see the child,
and found it was not ill at all. I asked to see the
doctor,!to ascertain what was really the matter with
it, but Mr. Marchmont said he lived somewhere
at Islington.. I then returned home, but he arrived
there before me. He rushed past me at the
gate, exclaiming that he had come for his wife, and
that he would have her. I said he should not, and
he replied that he would search the house for her.
I called the coachman to keep him out of the house.
In the morning Mrs. Marchmont went' home. I
received a note from her, in consequence of which
I went to her house about the 7th June. She was
ill in bed. She repeated to the the names that Mr.
Marchmont had called her in his presence. He did
not deny the languasre which she attributed to him.
He said he would not leave his wife with any doc-
tor or nurse who should be sent to her by me. As
I was leaving the room my sister called me back,
and told me her husband had put his fist in her
face and threatened to make her pay for what she
had told me. She requested me to go to the solici-
tor, Mr. Barnard, and I went: I was present at
the service of the warrant on the Ist June. Mr.
Marchmont was very violent ; at first he tried to
shut the door, and afterwards carried my sister
into the dining-room, where she fainted. He
threw her into a chair and held her down. Mr.
Mitchell was sent for. When she recovered Mr.
Marchmont went on his knees and begged her not
to send him before the magistrate.
Cross-examined—Before the death of Mr. Locket
I lived for some time at the hotel in Threadneedle-
street, and assisted him and my sister in the man-
agement of the business. I made it a condition of
having the wedding breakfast at my house that
none of Mr. Marchmont's friends should be invited.
After he had been to Tunbridge'Wells he called on
me, and I offered him a seat and a glass of wine.
When I went to Tunbridge Wells I told my sister
that he complained of having passed an uncomfort-
able honeymoon. My sister made no complaint
about him. I think she even said he had been as
kind as ever he was before the marriage. I have
drivenlwith my sister past Percy-place, but not with
a view of letting him see her. On the 7th June I
received a letter, not in my sister's writing. I do not
know who wrote it. I went to Percy-place after
receiving it. He did not say it was evident I and
my family- wished to get hold of my sister's money,
and we did not care for the misery we had caused.
Ile accused me of having given rise to their
differences. I did not call him a brute. My sister
had told me in his presence about the cause of her
illness at Tunbridge-wells, and he said she was a
filthy creature to talk of such things before me and
t`he servant. I disapproved the match, but I did not
say he had only married her for money.
Re-examined—She had only told me what one
sister-might properly communicate to another. I
don't think the servant could have heard it.
The next witness, Emma Oxley, the servant of
Mrs. Davis, corroborated her evidence in various
points.
Bridget Tobin, who had lived in the service of
Mrs. Marchmont for five years, gave evidence with
regard to the events which occurred in Percy-place
and substantially corroborated Mrs. Marchmont's
statements. She athred, that she had left the place
since Mrs. Marclimont had gone away from the
house, in consequence of having had a few words
with -Mr. Marchinont.
Cross-examined by Dr:Phillimore—l was living
with Mrs. Marelininnt when her niece Mrs.
Uzzielli, resided with her. She sometimes rang the
bell violently at that time. '
Dr. Phillimore put a question to the witness re-
specting the quarrels said to have taken place be-
tween Mrs. Marchmont and Mrs. Uzzielli.
Mr. Sergeant Pigott objected to the question as
irrelevant.
Mr. Macaulay and Dr. Phillimore contended that
they might be allowed to elicit evidence as to the
temper and habits of the petitioner.
Sir C. Crssswell said he would state his opinion
as distinctly as he could, in order that it might be as
bison to conirover.3y as he wished all his opinions to
be upon all occasions. In a new court like this the
sooner any point that was mooted, or any question
'that was disputed, could be settled by a court of ap-
peal the better. He could but decide the important
questions which were raised to the best of his abi-
lity at the time, and he should always be glad to
fglve every facility in his power for calling his opin-
ions in question at a future time. He thought the
question put by the learned counsel was inadmissible
and irrelevant. The issue they were trying was whe-
ther the respondent had been guilty of acts which
the 1 NW regarded. as cruelty, and it was an element
in that inquiry whethcath\er.e was any such provo-
cation on the part of
done
by
as to mitigate the
character of the acts ytthhe respondent. But
what hatli„,pa.-;s0c1 between
'third persbwn could not have petitioneri and a
lenyt ling to do with
the provocation, given to the Husband. A question
Might be raised as to her credit if she said that she
had- not provoked Mrs. ; bat, in matters
merely tending to impeach the credit of a witness
the witness s answer must be taken for better for
If inquiries of that kind were pursued a
trial would last till Doomsday.
In answer to further questions the witness stated
that after the quarrel about the account-book Mr.
Marchmont had a black patch on his face, which
he attributed to being struck with a book by
his wife ; and that Mrs. Marchmont did not
deny it. After their quarrels Mrs. Marchmont
looked frightened, and Mr. Marchmont would try to
make it up. ,lle would say, " Never mind, Carrie,"
and try to kiss her ; but she refused. _ During the
quarrel about the 14s. Mrs. Marchmont called him
" a monster" and " a rascalrand he said he would
not hurt a hair of her head, but he would• not be
set at defiance in his own house.
Mr. Mackenzie, to whom Mrs. Marehmount had

gone upon two occasions, and who had known her
for 30 years, stated that on her arrival the 'first
time she seemed almost paralysed. When Mr.
Marchmont came the first thing he said as, "Well
I've found you at last, Caroline. Money I want,
and by -, money I'll have." < ..He threatened to
send for a policeman and have her taken before the
Lord Mayor. On the second occasion Mrs. March-
mont took lodgings under the name of " Mrs.
Scott," so that he should not find her out. Mr.
Marchmont said he found her out by watching
Mrs. Davis's house at Blackheath, and when she
posted a letter bribing a man to let him see the
address. He used very foul language as he was
going home in the cab, and said he would have
£25,000.. Mrs. Marchmont was very much fright-
ened. The next morning she was ill. Mr. March-
mont repeated his demand for money. Witness left
because he called her a spy. He afterwards brought
her a few bottles -of port and said he was afraid
the case would go hard with him if it went into
court.
In cross-examination the witness said Mr. March-
mont had observed that it would be better for his'
wife to leave her money tohis children than to those
Walmisleys. She added that he never spoke
of that respectable family in a respectable manner.
(Laughter.)
Mr. Walmisley, the husband of a niece of Mrs.
Marchmont, and a merchant residing at Black-
heath, described what had occurred when Mr.
Marchmont went to fetch his wife. Witness ordered
him to leave the house, but he threatened to crack
his skull, and forced Mrs. Marchmontinto the hall
and then into the cab. She struggled violently and
screamed. Mr. Marchmont applied all sorts of
epithets to witness, and put his finger to his nose
with a vulgar gesture. Witness called him a
" miserable donkey." The petitioner was struck by
Mr. Marchmont on the chest and shoulders.
Jonathan Ellis, the cabman who drove them from
Walmisley's to the Peckham police-station, de-
scribed the screams of the petitioner while on the
road, and gave a similar account of what had
occurred at the station to that given by previous
witnesses.
The Court rose shortly after 5 o'clock.

COURT OF QUEEN'S BENCH.
RX PARTE THE REV. ALFRED POOLE.

(with whom were Dr. Philli-
more and Mr. Coleridge), said he had to apply to
the Court on the part of the Rev. Alfred Poole, for
a rule, calling upon his Grace the Archbishop of
Canterbury to show cause why a mandamus should
not issue, commanding him to make, or cause to be
made, inquiry into the matter of the appeal of the
Rev. Mr. Poole against the decision of the Bishop
of London revoking his license as stipendiary
curate of St. Barnabas, Pimlico. The application
was made under the Ist and 2d Victoria, cap. 106,
upon the ground that the Archbishop had not
heard the appeal which Mr. Poole had made
against the decision of the Bishop of London. In
point of form his Grace had pronounced judgment
on the appeal, but in point of substance he had not
heard it, for he had not heard Mr. Poole's witnesses,
nor had he (Mr. Poole) been heard by his counsel.
The demand made by Mr. Poole in his appeal was
that he might be heard by himself, counsel, and
witnesses, and that he might have an opportunity
of cross-examining the witnesses brought against
him, and giving an explanation of the facts and
circumstances of the case. lie (Mr. Poole) com-
plained that he had not had justice done him by
the tribunal appointed by the law, owing probably
to a misapprehension by the Archbishop as to the
functions which had devolved upon him. Mr.
Poole had been for seven years officiating as stipen-
diary curate of the district of St. Barnabas, Pimlico,
without any complaint of any sort being made
against him, and he had discharged his duties to
the entire satisfaction of the incumbent.

Lord Campbell said the only question for the
Court was whether Mr. Poole's appeal had been
heard, for if not, he was entitled to a mandamus to
hear him.

Mr. Bovill said that after the missapprehensions
which had gone abroad he hoped the Court would
not stop him in the few observations he wished to
make on that subject, for he wished only to state
that Mr. Poole had acted throughout with the en-
tire approbation of Mr. Liddell, the incumbent, and
that no complaint bad ever been made against his
(Mr. Poole's) character.
Lord Campbell said this Court had nothing to do
with the merits of the case, but only to see whether
the applicant had had an opportunity of being
heard.

Mr. Bovill said that if Mr, Poole were coming
here for the first time he (Mr. Bovill) would have
done no more than confine himself to the strict
point ; but this Court must have received some
information on the subject which must tend to
prejudice them, and he (Mr. Bovill) wished, there-
fore, to bring Mr. Poole before their lordships as a
gentleman of irreproachable character, and he did
that as well for the sake of Mr. Liddell as of the
Bishop of London, who held Mr. Poole in the
highest estimation. He would now state the
circumstances which had deprived this gentle-
man of his license, and had destroyed the character
which he previously enjoyed. In the year 1851 he
was licensed by the then Bishop of London to offi-
ciate as the stipendiary curate of. St. I3arabas, and
he had continued to fill that office down to the 25th
May, 1858. in the month of March, 1858, the Rev.
Mr. Baring received the statements of certain
females, which were made the subject of a public
discussion. The statements were taken down in
writing, and forwarded by him to the Bishoji of
London, who made them the ground of a serious
charge against Mr. Poole; and, certainly, if those
statements were true, Mr. Poole ought to be de-
graded and scouted from society. On the 22d of
March, 1858, Mr. Poole received a letter from the
Bishop of London, stating that a formal complaint
had been made against him by the Hon. and Rev.
F. Baring, " respecting the practice of confession
at St. Barabas;" that for his own sake, as well as
that of the Church, the matter must be fully inves-
tigated ; and requesting him (Mr. Poole) to call
upon him at the London-house. Upon that Mr.
Poole had an interview with the bishop, when the
bishop read the statements sent by Mr. Baring.
The statements themselves were of so gross a cha-
racter that it would be an offence against decency to
read them in public ; but the Court would take it
that they were of the grossest and worst descrip:
tion, and, if true, as he had said before, Mr. Poole
ought to be scouted from society. But he (Mr.
Bovill) was instructed by Mr. Poole to make the
most complete and positive denial of these state-
ments.

Lord Campbell said he must again entreat the
learned counsel to turn his attention to the subject
on which his application ought to turn.
Mr. Bovill then proceeded to contend that the
decision of the Archbishop had proceeded on grounds
quite different from what had originally been
charged against Mr. Poole, and even from those on
which the Bishop of London had pronounced his
judgment, and decided to withdraw his license.
Mr. Poole had requested that he might be heard
by the Bishop of London upon that new ground,
but he was not heard. He then made his appeal
to the Archbishop, under the Ist and 2d Victoria,
c. 106. The 98th section of that statute enacted
that—

" It shall be lawful for the bishop to license any curate
who is or shall be actually employed by any non-resident
incumbent of any benefice within his diocese, although no
express nomination of such curate shall have been mado to
such bishop by the incumbent—and that the bishop shall
have power, after having given to the curate sufficient op-
portunity of showing reason to the contrary, to revoke
summarily and without further process, any license granted
to any such curate and to remove such curate for any
cause which shall appear to such bishop to be gookand
reasonable . provided always that any such curate may,
within one month after service upon him of such revoca-
tion, appeal to the archbishop;ef the province, who shall con-
firm or annul such revocation; as to him shall. appear just
and proper."

The Bishop having decided to revoke the licen
it was not his (Mr. Bovill's) intention to inquire
into the propriety of the mode in which he had
conducted the case. An appeal was then presented
to the archbishop in due time, as prescribed by the
111th section of the statute, which enacted that—
" All appeals under the provisions of this Act to any
Archbishop shall be in writing, signed by the party appeal-
ing ; and that, in order to discourage frivolous appeals, no
proceeding shall be had in any such appeal until the appel-
lant shall, if required, have given security, in such form
and to such amount as the Archbishop shall direct, of pay-
ment to the Bishop of such cossit as shall be awarded by
the Archbishop, if he shall decide against the appellant,
and that after such security, if required, shall have been
given, the said Archbishop shall forthwith, either by him-
self or by some commissioner or commissioners appointed
under his hand from among the other Bishops of his pro-
vince, make or cause to be made, inquiry into the matter
complained of, and shall after such inquiry, and in the
latter case after a report in writing from his said commis-
sioner or commissioners, give his decision in such an appeal
in writing under his hand ; and when he shall decide the
matter of the appeal against the appellant he shall also
award and direct whether any and what amount of costs
shall be paid by the appellant to the Bishop respondent ;
and in like manner when ho shall decide in favour of the
appellant he shall also award and direct whether any and
what amount of costs shall be paid by the Bishop respond-
ent to the appellant."
On the occasion when Mr. Poole presented his
appeal to the Archbishop the Archbishop's secre-
tary required that security for costs should be
given, and security was given accordingly for the
amount required. For what purpose did the Act
require security for costs to be given, but that it
required that a judicial inquiry should take place
on the appeal to the Archbishop ? Mr. Poole, in
his petition of appeal, prayed his grace to annul
the revocation of his license, and—
" That your grace will be pleased to appoint a time for
the hearing of the petitioner on the matter of the said
appeal, and that at the time so to be appointed by your
grace you will be pleased to sit judicially, and to hear him,
the petitioner, by counsel, on the matter of the said, appeal',

and to allow any witnesses to bo examined, viva voce,
whether against the said petitioner or on his behalf, for the
following among other reasons."

The learned counsel submitted that the Archbishop
was to sit judicially on the appeal, he was to make
inquiry, and the appellant was entitled to be pre-
sent. The appellant was entitled to have his case
heard and decided on, and if that was not done,
justice was not done as the Act required. Why
was it required that security for costs was to be
given ? It was known there was to be the Bishop
on one side and the appellant on the other, in the
form of a judicial proceeding. But what actually
occurred was simply this—without examining any
witnesses or calling in the assistance of assessors,
in the absence of the appellant, who was not even
summoned to show cause, the Archbishop at once
decided on the appeal. The petition was dated the
24th of June, and on the 9th of July the Arch-
bishop wrote this letter to Mr. Poole :

" Lambeth Palace, July 9.
" Rev. Sir,—l have considered very carrfully the state-
ments contained in your petition of appeal against the revo-
cation of your license as curate by the Bishop of London,
which you haVe presented to me under the provisions of the
Ist and 2d Victoria, cal). 106, sec. 93. .
" Under that statute the Bishop has power, after having
given to the curate sufficient opportunity of showing reason
to the contrary, to revoke, summarily and without further
process, any license granted to any curate for any cause
which appear to such Bishop to be good and reasonable.
" My duty, therefore, is to examine, in the
_first place,
whether sufficient opportunity has been given to you of
showing reason to the contrary. And I find that, by a
formal letter under the hand of the Bishop, dated the 18th
of May, you were appointed personally to attend the Bishop.,
for that purpose at London-house on the 22d of May, unless
you preferred at any time before that day to show such rea-
son in writing under your hand ; and that on the 21st of
May, in obethence to the Bishop's letter, you addressed to
him, in writing under your own hand, what appeared to be
necessary on your own behalf.
" I have to consider, secondly, whether there has been
good and reasonable cause for the revocation of your license.
" It appears from the statements in your formal reply of
the 21st of May, and in your letter of the 15th of May, to
which in your formal reply you refer the Bishop, that you
have been in the practice of conducting a system of private
confession and absolution among your people ; and that the
Bishop deemed such practice to be not authorised by the
Church of England, and to be calculated to bring scandal
on the Church.

" I concur with the Bishop in the view which he has
taken of your practice in this respect, and therefore think it
ust and proper to confirm the revocation of your license,
and I confirm it accordingly.
" I am, Rev. Sir, your faithful servant,
"J. B. CANTUAR.

" The Rev. Alfred Poole, St. Barnabas College, Pimlico."
The learned counsel here commented at great length
on this document, and contended that the ground
on which the Archbishop confirmed the decision of
the Bishop was different from that on which the
Bishop revoked the license ; and that that also was
not upon the ground of the charges originally
brought against him by Mr. Baring, but upon
another ground, which arose out of certain admis-
sions which the Bishop said Mr. Poole had made
in his letter to him—viz., that in admitting
females to confession he " addressed to them ques-
tions of a character calculated to bring scandal on
the Church." This miscarriage of justice all arose
from not summoning Mr. Poole before him and hear-
ing his witnesses. That was a practice which the law
of this country would not allow. The law required
that there should be no mistake as to the charge,
and that an accused person should know who
his opponent was, and should be heard in his de-
fence, and have an opportunity of examining his
witnesses. It was of essential importance in this
case that the Lord Archbishop should know what
the facts of the case were, and if the witnesses were
worthless in point of character, that their motives
should be explained. There ought to have been a
most rigid inquiry into the charges, and when the
facts were ascertained the question would then
arise as to what the practice of the Church was in
regard to confession—whether it was not, under
certain circumstances, sanctioned and enjoined.
He submitted that there was no case in which there
was greater necessity to investigate the facts, in
order that it might be seen whether or not there
had been any infringement of the law. The learned
counsel said he should call their lordships' attention
to the facts which were brought before the Bishop
of London, and the charges which were made
against Mr. Poole by. Mr. Baring. If those facts
were true, Mr. Poole ought to be deprived of his
license, but Mr. Poole denied those facts. He
would only refer to one particular.
Lord Campbell said the learned counsel had really
better not, for this was not a Court of Appeal; his
lordship hoped the learned counsel would confine
himself to the point for this Court.
Mr. Bovill said he would only mention one point,
in order to show how the charge varied from time
to time ; but

Lord Campbell interposed,'and said the question
was whether Mr. Poole had had the power which
which the statute gave him of appealing.
Mr. Bovill then contended that the Court,
reading the 98th and 111th sections of the Act
together, would come to the conclusion that
there was to be a judicial investigation, and he
then referred to the case of Capel v. Child" (2,
Crompton and Jervis, 558), to show that even
when a Bishop was authorised by the statute 57
George 111., c. 99, in certain cases to appoint a
curate, and to decide "according to his Own know-
ledge," he was still bound to proceed' judicially
and to give the clergyman an opportunity of being
heard and examining his witnesses. That case
was twice argued before the Court of Exchequer
Chamber, first by common lawyers, and after-
wards, at the request of the eourt, by civilians ;
and as the Court held that the Bishop had decided
without summons, and without hearing.the clergy-
man,, the proceeding was invalid. The learned
counsel here read* several passages from the judg-
ment of Lord Lyndhurst in the
_case cited, and
commented on it as he proceeded, to show how it
was applcable to the case now before the Court.
The curate was required by the statute, 1 and 2
Victoria, chap. 106, to give notice of his appeal,
and required to give security for costs, and power
was given to the archbishop to appoint commis-
sioners to make inquiry into the matter com-
plained. of. _
__ •

Lord Campbell said the statute also required that
the curate should have notice, and a sufficient op-
portunity of showing reason to the contrary before
the bishop could revoke his license.
Mr. Bovill said, the effect of the bishop's de-
cision in revoking Mr. Poole's license was that he
was destroyed, for he could not disrobe himself,
and no other occupation was open to him. Mr.
Poole appealed to the archbishop, and the latter
decided against him without giving him an oppor-
tunity of being heard, and even without notice that
he was about to give judgment.
Lord CampbAl—You contend that the appeal
ought to be heard in curia ; not in camera, but in
the public forum ?
Mr. Bovill said, that was his contention. Under
the statute the 3d and 4th Victoria the archbishop
could avail himself- of the highest legal assistance
by the appointment of commissioners to inquire
into the matter. In the case of a beneficed clergy-
man, the bishop could proceed only under the 3d
and 4th of Victoria, but in the case of a-curate the
jurisdiction was given to the bishop with an appeal
to the archbishop. The Legislature never intended
that a curate should be deprived of his means of
obtaining a living without being heard.
Lord Campbell said the question was whether it
was not sufficient if the curate had had an oppor-
tunity of being heard before the bishop ?
Mr. Justice Hill inquired whether the act gave
power to compel the attendance of witnesses?
Mr. Bovill said it did not.

Mr. Justice Eric said it was a. question whether
the appeal to the archbishop was to be a new trial
of the facts, or whether it was not, as was some-
times the case, an appeal on the question reduced
to writing.
Mr. Bov,ill said that one ground of appeal was
that the appellant had not been heard by the bishop.
Lord C ampbell—You complain that the appel-
lant has not been heard by his counsel and wit-
nesses.

Mr. Justice Wightman—Nor by himself.
Mr. Bovill said it was true there was no power
to summon witnesses before the archbishop • but the
same objection might have applied- in the case of
" Cape' v. Childs," decided under 57th Geo. 111. At
all events, he was entitled to be heard by himself.
Lord Campbell said that in the. case of a parish
clerk, this Court had held that he could not be con-
demned before he was heard.
Mr. Bovill then referred to Dr. Bentley's case in
Strange, and that.of ." Brunaker v. Evans" (16 Q.
8., 162), and contended that although there might
be no power to compel the attendance of Witnesses,
the. appellant had right to be heard, and to examine
those who might attewi voluntarily.
Mr. Justice Erle said that on a trial in a court of
first instance a party had a right to be heard, but
he wished to be satisfied whether the appellant had
the same right.
Mr. Bovill then referred to Dr. Bentley's case,
in 1 Strange's Reports, 537, and contended that
the principle applied to all courts of appeal, as well
as courts of first instance, that a party was not to
be condemned without being heard.
Lord Campbeil said the question was whether the
court of appeal was to rehear the case; or merely
to decide whether the decision was right or wrong.
Generally speaking a court of appeal did not re-
hear, but decided whether the first judgment was
right or wrong.

Mr. Bovill then referred to the facts of the case,
as stated in the appellant's petition to the arch-
bishop, and commented upon them at great length,
with a view to show that he had not been heard
before the bishop upon the question on which the
archbishop had decided the appeal. The learned
counsel also read and commented upon the corre-
spondence which had taken place between the

appellant and the Bishop of London, and which
was sat forth at length in his petition of appeal,
and showed that facts were alleged against him
which he wi,hed to have an opportunity of dis-
proving and explaining. The bishop had not in-
quired into those facts, and, even if he had done so,
the question still remained as to what, was the doc-
trine of the Church of England in-regard to them.
The learned counsel said it was admitted that con-
fession was sanctioned by the Church, and he asked
where was the line to be drawn ? Was this or any
other Court competent to draw the line? A few
took the Communion voluntarily, and 10,000 ab-
stained from it, and thus a few made confession
voluntarily, while 10,000 voluntarily abstained.
Thousands abstained, while others, for the unbur-
dening of their sins and delivery from grief, made
confession either when about to enter the presence
of their Maker or to avoid partaking unworthily
of the Communion. No one could assert that con-
fession was not allowed by the Church, and. no
bishop or archbishop was competent to decide the
question whether a clergyman went beyond the
proper line.
Mr. Justice Erle said, the question was not whe-
ther or not the archbishop had decided properly.
Even if he had decided glaringly wrong this Court
would not interfere. The question was, whether he
had declined to exercise his jurisdiction.
Mr. Bovill contended that, if there was any case
in the world, this was one, in which a gentleman
ought not to be deprived of all his temporal pos-
sessions and his character without being heard. It
was contrary, not only to the act of Parliament, but
to the first principles of justice that, when a man
applied .to be heard, his case should be decided
against him without inquiry. After some observa-
tions the learned counsel sat down, and left the case
in the hands of the court.
After a few minutes' conference with the other
judges,
Lord Campbell said, the court thinks that a rule
to show cause should be granted.—Rule nisigranted.