Capel v Child: 1832

A bishop issued a requisition under statute, requiring the Vicar of W to nominate a Curate with a stipend, on the ground that it appeared to the bishop, of his own knowledge, that the ecclesiastical duties of the vicarage and parish church of W were inadequately performed, by reason of the vicar’s negligence. The vicar appointed no curate and did not appeal to the Archbishop. The bishop after 3 months licensed the reverend B as Curate of W, with a stipend. The vicar refused to allow B to officiate; upon which the bishop issued a mandate, or summons, to show cause why the vicar should not pay the stipend due, and ultimately proceeded to sequestration.
The requisition upon which the whole of the proceedings were founded was in the nature of a judgment, and void as the party had had no opportunity of being heard
Such a requisition ought to state particular instances of negligence, or show how the incumbent was negligent.
Lord Lyndhurst CB said of the statute: ‘Here is a new jurisdiction given – a new authority given: a power is given to the bishop to pronounce a judgment; and, according to every principle of law and equity, such judgment could not be pronounced, or, if pronounced, could not for a moment be sustained, unless the party in the first instance had the opportunity of being heard in his defence, which in this case he had not; and not only no charge is made against him which he had an opportunity of meeting, but he has not been summoned that he might meet any charge.’
Baron Bayley said: ‘ Upon the general principles of law, it would have been essential, if the bishop had proceeded by way of affidavit, to have given the opposite party an opportunity of being heard. When the bishop proceeds on his own knowledge, I am of opinion also that it cannot possibly, and within the meaning of this Act, appear to the satisfaction of the bishop, and of his own knowledge, unless he gives the party an opportunity of being heard, in answer to that which the bishop states on his own knowledge to be the foundation on which he proceeds . . It would be quite sufficient if the bishop were to call the party before him, and to state to him the grounds on which he thought the duties were inadequately per- formed, by reason of his negligence; and he should have asked whether he had or had not any grounds on which he could answer that charge; but, is it not a common principle in every case which has in itself the character of a judicial proceeding, that the party against whom the judgment is to operate should have an opportunity of being heard? ‘

Lord Lyndhurst CB, Baron Bayley
[1832] EngR 40, (1832) 2 Cr and J 558, (1832) 149 ER 235
England and Wales
Cited by:
CitedFisher v Jackson ChD 7-Mar-1891
The deed of trust establishing an endowed school provided that the master of the school should he appointed by the vicars of three specified parishes, and power was given to the three vicars to remove the master for certain specified causes. The . .
CitedRidge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .

Lists of cited by and citing cases may be incomplete.

Ecclesiastical, Natural Justice

Leading Case

Updated: 09 November 2021; Ref: scu.318988