to these facts, she had no right to withdraw from them at any time before sentence was pronounced. If the marchioness could not retire being concluded herself, she had also concluded an intervening party. The jurisdiction of the ecclesiastical court depended not on the locality of the subject, but on the locality of the person. How then were the interests of C. to be prejudiced by the proceedings [ *488 ] being instituted in London, instead of Ireland? His honour was therefore of opinion, on authority and principle, that the marchioness was now precluded from objecting, having submitted to the jurisdiction, and that C. was bound by her submision.(1) It is a general principle, as well in courts of equity as in courts of law, that a party admitting a fact, which does give jurisdiction to a court, and appearing and submitting to such jurisdiction, can never recede, or as it is called in the Scotch law, resile from those facts and withdraw that admission.(m) It may be questionable whether a citation of the wife at the domicile of the husband, is not sufficient to found the jurisdiction of the court even in a suit of nullity of marriage against the wife, wherever the wife may be actually resident.(n) A party may have two domiciles, the one actual the other legal: and prima facie at least, the husband's actual is the wife's legal domicile, wheresoever the wife may be personally resident. Upon the principle of the domicile of the husband being the legal domicile of the wife, it seems that the citation of the wife at the domicile of the husband is clearly sufficient to found the jurisdiction of the ecclesiastical court in a suit for separation a mensa et thoro, by reason of adultery, the wife being fixed with notice of the suit.(0) Where the court has clearly no jurisdiction, it will not suffer the parties to proceed and to incur unnecessary expense, it will stop without waiting for an injunction; but if the point be at all doubtful, the court will be bound to proceed, for to refuse the exercise of a jurisdiction, which is competent to entertaim the suit, and to which a party applies, is a sort of denial of justice.(p) Of the Citation.]-The mode of commencing the suit and bringing the parties before the court, is by a process called a citation, or summons, containing the name of the judge, the plaintiff and the defendant, the cause of action, and the time and place of ap[ *489 ] pearance. This citation, in ordinary cases, is obtained as a matter of course from the registry of the court, and under its seal q) but in special cases, the facts are alleged in what is termed an act of court, and upon those facts the judge or his surrogate decrees the party to be cited; to which, in certain cases, is added an intimation, that if the party does not appear, or appearing does not show cause to the contrary, the prayer of the plaintiff, set forth in the decree, will be granted.(r) This process is served by some respectable person, generally by the apparitor of the court, if the distance will allow, (that is if the parties reside within twenty miles of London,) by showing the original, under the seal of the court, and (1) Donegal v. Donegal, 3 Phill. R. 586. (m) Ib. 608, 609. See Carthew, 33. (n) Chichester v. Donegal, 1 Addams, 19; 6 Madd. 375; Warrender v. Warrender, 2 Cl. & Finn. 483 (0) 1 Addams, 19, n. (p) Grignion v. Grignion, 1 Hagg. Eccl. R. 536. (9) Conset 27. (r) 3 Hagg. Eccl. R. 11. delivering a correct copy of it to the defendant. A certificate of the service is endorsed on the citation, verified on oath by the person who has served it, and returned to the registry. Should the parties. however reside beyond twenty miles from London, it is customary to send the original citation or decree, &c. to a solicitor or other person residing in the immediate neighbourhood where the party to be cited lives or is remaining, who can effect the service thereof in the manner above stated; certifying on the back of the original the execution of the instrument, which he verifies by an affidavit sworn before a master extraordinary in chancery.(s) If the person to be served cannot be found, a return to that effect is made and certified, and a citation viis et modis, by ways and means, or a compulsory citation, may issue, to be served personally if possible, otherwise on the door of the last residence of the party, or upon the door of the parish church, if he has no longer any known residence. If an appearance is not obtained in this citation, the party is put in contempt, and the proceedings may be conducted exparte, or in pœnam contumacia, as hereafter stated.(t) The distinction between this service viis et modis and personal service is, that the latter may conclude both the party and the court; but the former is a constructive service, and concludes the party, but does not conclude the court. The court on good and sufficient grounds may open the proceedings to get at the substantial justice of the [ *490 ] case.(u) The common practice is for the proctor, who extracts the citation, duly signed and sealed, to translate the heads of it, or shortly to explain its meaning in English, which summary is called the English Note, and is delivered to the mandatory, with the original citation. The citation or mandate thus delivered is considered to have been duly executed, when the mandatory has shown it, under the seal of the official, to the party summoned; and instead of a copy of the citation, as in former times, he is only required to leave with the party the above-mentioned note in English.(v) If a party cited asks for a copy of the citation, the mandatory is bound to give him one, on payment of sixpence, if it be a common or ordinary citation. But if it be an extraordinary citation, containing an inhibition or intimation, and therefore of necessity more lengthy and voluminous, then the party cited must pay twelve pence for the copy.(x) A citation may be served on a Sunday, or according to the custom of the ecclesiastical court, it may be fixed to the church door on a Sunday; and this shall not be said to be restrained by the stat. 29 Car. II. c. 7, which prohibits the serving of any process whatever upon a Sunday, except in cases of treason, felony, or breach of the peace.(y) When the person is beyond the sea, the usual mode of publishing the citation by proclamation, was by affixing the decree on one of the pillars of the royal exchange.(z) In all cases of process served on a minor, (s) 4 Chitty's Pr. 137. (1) See post, p. 492; Rep. Eccl. Comm. 14, 15; 1 Phill. 176; 2 Hagg. Cons. R. 263. 369. (u) In bonis, Robinson, 3 Phill. R. 512. (v) Law Eccl. Forms, 92. (x) Ibid. (y) 5 Mod. 449; Carth. 504; Lord Raym. 706; arg. 12 Mod. 275; Bac. Abr. Eccl. Courts (E). (2) 1 Hagg. Eccl. R. 55. See 1 Phill. 175, 176; post, 500. pres the court requires a certificate of its having been served in the ence of the natural or legal guardian of the minor; or, at least in that of some person or persons upon whom the actual care and custody of the minor for the time being has expressly devolved.(a) A party in custody for debt may be cited.(b) The cause for which the citation is issued should be correctly stated.(c) A variance between the citation and the sentence prayed is *fatal. A citation issuing as "in a suit of nullity of marriage by [ *491 ] reason of a former marriage," will not found a sentence of separation by reason of an undue publication of banns, the woman being therein described as spinster, the first husband having died subsequently to the publication of the banns, but prior to the marriage.(d) But it is not a good objection, that if there be two charges in the citation, only one is subsequently proceeded on; nor that a part of the general charge only is proceeded on, if the charge be in itself divisible.(e) Thus where the original citation was by a wife against her husband for a divorce by reason of cruelty, which was retured on the second session of the Michaelmas term, 1826. On the admission of the libel the cause was appealed, and on the by-day after Trinity term, 1827, the appeal was pronounced against; but the court, at the petition of both proctors, retained the cause. The husband afterwards confessed the marriage, but otherwise gave a negative issue, and the wife was assigned to prove the issue; it was afterwards moved to add articles to the libel, pleading acts of adultery subsequent to the commencement of the suit. The court said "the only question was, whether a fresh citation was necessary, the husband being already before the court; and that as no distinction existed between the one proceeding and the other, in order to save useless expense, the articles should be received, though the original citation was for cruelty only."(f) In Popkin v. Popkin,(g) Lord Stowell inclined to think that, under a citation for adultery, facts of cruelty could not be pleaded, nor vice versa. A mere misnomer of the parish of the party cited, unless out of the jurisdiction, is not fatal, if the court can collect with certainty that he is the party intended, and that there is no danger of proceed. ing against a wrong person.(h) A misnomer is cured by appearance. A party alleging a misnomer is bound to assign the name by which he means to abide.(i) Of Appearance.]-The party cited may either appear in person or by his proctor, who is appointed by an instrument *under hand and seal, termed a proxy. The proctor thus ap[ *492 ] pointed represents the party, acts for him, and manages the cause, and binds him by his acts.(j) By the practice of these courts, if the party himself come into court, and do any act himself, he thereby vacates a power given to another to act for him.(k) Orders of the Court.]-The following orders of the court may be properly inserted in this place :(/) 3. That when a party shall have been duly cited, and shall not appear on the day assigned for his appearance, such party shall be pronounced in contempt, and the proceedings shall on the following court day, and afterwards, be carried on in pain of his consent,-" in panum contumaciӕ.” 4. That where proceedings are carried on " in ponum contumacia," witnesses may be produced and sworn before a surrogate in his chambers as well as in open court, and such production shall be immediately entered and recorded in the register book: but the witness so produced shall not be repeated to his deposition until forty-eight hours at least shall have expired from the time of his production. 5. That the proctor of a party taking out a citation, or other process, shall on the day of its return be prepared to exhibit his proxy, and to proceed in the cause by taking the first step therein, according to the nature of the proceedings. 6. That any party who shall have been served with a citation, or other process to appear, and who shall appear on the day assigned therein, shall be dismissed with his costs, unless the party taking out such citation or process shall return the same, and be prepared to proceed in the suit, for which costs the proctor taking out such citation or other process shall be liable. 7. That a proctor appearing for a party cited shall be prepared with his proxy, and shall exhibit the same on entering such appear ance. 8. That the proctor of a defendant in a matrimonial cause shall admit or deny the fact of marriage, under pain of suspension, on the same day that the plea alleging the marriage is admitted.(m) [ *493 ] *Appearing under Protest.]—A party appearing, and not intending to waive any objection to the jurisdiction of the court, should appear under protest with respect to the jurisdiction.(g) In cases where some act is required to be done by the party cited, as, for instance, to pay alimony, the compulsory process is enforced ; but in some cases, where no act is necessarily to be done by the party cited, the plaintiff may proceed in pænam contumacia, and the cause then goes on ex parte, as if the defendant had appeared. The party cited, to save his contumacy, may appear under protest, and may show cause against being cited; such as, that the court has no jurisdiction in the subject-matter, or that he is not amenable to that jurisdiction; this preliminary objection is heard upon petition and affidavits; and either the protest is allowed, and the defendant dismissed, or the protest is overruled, and the defendant is assigned to appear absolutely; and costs are generally given against the unsuccessful party. Either party may appeal from the decision on this preliminary point; or the defendant, in case the judge decides against him on the (1) 13 Feb. 1830; 2 Hagg. Eccl. R. Preface. See 10 Geo. 4, c. 53, s. 9. (m) Orders of the Court, 13 Feb. 1830. See 10 Geo. 4, c. 53, s. 9. (9) Donegal v. Donegal, 3 Phill. R. 606; see 2 Addams, 140. question of jurisdiction, and on some other questions, may apply to a court of law for a prohibition.(1) A party appearing in court under protest, may be assigned "to extend his protest," that is, to state his grounds of exception to the jurisdiction of the court in a sort of informal plea, which is termed in the ecclesiastical courts "an act of petition." The object of which is, that the grounds of exception should be stated specifically and distinctly, so that both the court and the adverse party may be duly apprized of them, and in order that the latter may furnish, if in his power, a counter statement upon any matter either of fact or law.(s) In a suit brought by the father of the party, who appeared under protest, counsel ought to be heard for extending the protest, before the party is directed to appear absolutely.(1) *In a suit by the husband for restitution of conjugal [ *494 ] rights, appealed by the wife to the court of arches from the consistory court of London, in which it originally depended, on a grievance, the husband appeared to the usual inhibition of the court, not absolutely, but under protest, which disclosed an appealable grievance on the face of it, without at the same time so disclosing any peremption of the appellant's right to appeal therefrom, the court overruled such protest, and directed an absolute appearance. (v) Mode of enforcing Process.]-The powers of the ecclesiastical court were formerly very defective for enforcing their sentences, for which they had no other process but that of excommunication, by which the party incurred certain civil disabilities.(w) The mode of enforcing all process, in case of disobedience, is by pronouncing the party cited to be contumacious; and if the disobedience continues, a significavit issues, upon which an attachment from chancery is obtained, to imprison the party till he obeys. By stat. 53 Geo. III., c. 127, s. 1, excommunication, with the proceedings followed thereon, (except in certain cases specified in the 2nd section of that act,) are directed to be discontinued in England and Ireland. The ecclesiastical courts however, still pronounce sentences of excommunication, but since that statute, the ancient punishment of excommunication is taken away, the person excommunicated incurs no civil penalties, except such imprisonment as the court in the exercise of its discretion may think proper to direct, not exceeding six months.(z) By statute 53 Geo. 3, c. 127, s. 1,(y) it is enacted, That in all causes which are cognizable in the ecclesiastical courts, when any person or persons having been duly cited to appear in any ecclesiastical court, or required to comply with the lawful orders or decrees, as well final as interlocutory, of any such court, shall neglect or refuse to appear, or to obey such lawful orders or decrees, or when any person or persons shall commit a contempt in the face of such [ *495 ] court, no sentence of excommunication shall be given or pronounced, except in the particular cases specified in the act ;(u) but (r) Rep. Eccl. Comm. p. 16. (8) Addams, 11, 12. See Bowler v. Har vey, 4 Hag. Eccl. R. 241. (t) Butler v. Dolben, 2 Lee's R. 319. (x) Hoile v. Scales, 2 Hagg. Eccl. R. 596. (0) The provisions of the stat. 53 Geo. 3, c. 127, ss. 1, 2, 3, are extended to Ireland by 54 Geo. 3, c. 68, ss. 1, 2, 3. (u) The second section provides, "That nothing in this act contained shall prevent |