instead thereof the judges or judge who issued out the citation, or whose lawful orders or decrees have not been obeyed, or before whom such contempt in the face of the court shall have been committed, may pronounce such person or persons contumacious and in contempt, and within ten days may signify the same in a certain form(x) to the court of chancery, as had theretofore been done in signifying excommunications; thereupon a writ de contumace capiendo in a certain form(y) shall issue *from the court of [ *196 ] chancery, directed to the same persons to whom the writs de excommunicato capiendo had heretofore been directed; and the same shall be returnable in like manner as the writ de excommunicato capiendo had been by law returnable heretofore, and shall have the same force and effect as the said writ; all rules and regulations not thereby altered, then by law applying to the said writ and the proceedings following thereupon, and particularly the several provisions contained in the statute 5 Eliz. c. 23, shall extend and be applied to the said writ de contumace capiendo, and the proceedings following thereupon, as if the same had been therein enacted. The proper officers of the said court of chancery are required to issue such any ecclesiastical court from pronouncing or declaring persons to be excommunicated in definitive sentences, or in interlocutory decrees having the force and effect of definitive sentences, such sentences or decrees be ing pronounced, as spiritual censures for offences of ecclesiastical cognizance, in the same manner as such court might lawfully have pronounced or declared the same had this act not been passed." The third section enacts, "That no person who shall be so pronounced or declared excommunicated shall incur any civil penalty or incapacity whatever in consequence of such excommunication, save such imprisonment, not exceeding six months, as the court pronouncing or declaring such person excommunicate shall direct; and in such case the said excommunication, and the term of such imprisonment, shall be signified or certified to his majesty in chancery, in the same manner as excommunications have been heretofore signified; and thereupon the writ de excommunicato capiendo shall issue, and the usual proceedings shall be had, and the party taken into custody shall remain therein for the term so directed, or until he shall be absolved by such ecclesiastical court." may be] appearing before [here set out the us that A. B. registrar [or" deputy registrar," as the case may be]." of (y) "Victoria, &c.: To the sheriff of greeting: The hath signified to in your county of is manifestly contumacious, and contemns the jurisdiction and authority of [here fully state the nonappearance, diso. bedience, together with the commands diso. beyed, or the contempt in the face of the court, as the case may be], nor will he submit to the ecclesiastical jurisdiction; but forasmuch as the royal power ought not to be wanting to enforce such jurisdiction, we command you that you attach the said (x) "To her most excellent majesty and our sovereign lady Victoria, by the grace of God, of the United Kingdom of Great Britain and Ireland queen, defender of the faith, by Divine Providence, &c. health in Him by whom kings and princes by his body, until he shall have made rule and govern: we hereby notify and sig- satisfaction for the said contempt; and how nify unto your majesty that one of you shall execute this our precept notify unto and in nowise omit this, and have you there this writ. Witness ourself at Westminster, the day of in the year of our reign." hath in the county of been duly pronounced guilty of manifest contumacy and contempt of the law and jurisdiction ecclesiastical, in not [as the case. writ de contumace capiendo accordingly; and all sheriffs, gaolers, and other officers are thereby required to execute the same, by taking and detaining the body of the person against whom the said writ shall be directed to be executed; and upon the due appearance of the party so cited and not having appeared as aforesaid, or the obedience of the party so cited and not having obeyed as aforesaid, or the due submission of the party so having committed a contempt in the face of the court, the judges or judge of such ecclesiastical court shall pronounce such party absolved from the contumacy and contempt aforesaid, and shall forthwith make an order upon the sheriff, gaoler, or other officer in whose custody he shall be, in the form prescribed by the act(z) for discharging such party out of [ *497 ] custody; and such sheriff, gaoler, or other officer shall, on the said order being shown to him, so soon as such party shall have discharged the costs lawfully incurred by reason of such custody and contempt, forthwith discharge him." Process against Persons privileged, or out of the Jurisdiction.]Great inconvenience formerly arose by reason of the process of the several ecclesiastical courts in England and Ireland being inoperative and unavailable out of the limits of the respective jurisdictions of such courts, and against persons having privilege of parliament, as peers, and members of the house of commons. The process of such courts, and the means of enforcing obedience to the same, are now of equal force, and have the like operation in England as in Ireland, and as well against such privileged persons as against all other subjects. By stat. 2 & 3 Will. 4, c. 93, it is enacted, that where persons residing beyond the jurisdiction of any ecclesiastical courts, either in England or Ireland, are cited to appear, or are required to comply with any order or decree of such courts, and refuse obedience, the judge thereof may pronounce them contumacious, and certify the same to the lord chancellor within ten days; and if the person shall not be a peer, or member of the house of commons, a writ de contumace capiendo shall issue; and upon the appearance or submission of the party, the judge may order him to be absolved or discharged (s. 1). Where persons, whether peers, members of parliament, or not, shall refuse to comply with any order of any such courts, the judges may pronounce such persons contumacious, and certify the same to the lord chancellor, who shall cause process of sequestration to issue against the estate of the party, with the same power and effect as if it were an order of the court of chancery (ss. 2 & 3). By s. 4 it is provided, that this act shall not extend to orders made more than six years since, which of course extends it to all orders made within that time. (z) "Whereas of in your county of whom lately at the denouncing of for contumacy, and by writ issued hereupon, you attached by his body until he should have made satisfaction for the contempt; now he having submitted himself, and satisfied the said contempt, we hereby empower and command you, that without delay you cause the said to be delivered out of prison in which he is so detained, if upon that occasion and no other he shall be detained therein. Given under the seal of our of A. B. registrar [or "deputy registrar," or as the case may be.] Extracted by E. F., proctor." The 28th section of 3 & 4 Will. 4, c. 41, enacts, that the judicial committee shall enjoy all the powers of punishing *con[ *498 ] tempts, and of compelling appearances, and his majesty in council shall have and enjoy in all respects such and the same powers of enforcing judgments, decrees, and orders, as are now exercised by the court of chancery or King's Bench, (and both in personum and in rem); or as are given to any court ecclesiastical, by an act passed in 2 & 3 Will. IV. c. 98,(b) intituled an act for enforcing the process upon contempts in the courts ecclesiastical in England and Ireland; and that all such powers as are given to courts ecclesiastical, if of punishing contempts, or of compelling appearances, shall be exercised by the said judicial committee; and if of enforcing decrees and orders, shall be exercised by his majesty in council in the same manner as the powers in and by such act given, and shall be of as much force and effect as if the same had been expressly given to the said committee or to his majesty in council. Sentence of Contempt.]-We have already seen that the ecclesiastical judge or judges are to pronounce the party in contempt, and to certify the same by writ of significavit to the court of chancery.(c) Contumacy is a wilful contempt and disobedience to any lawful summons or judicial order.(d) An insane person canot be guilty of a contempt so as to be legally responsible.(e) An erroneous notion has prevailed that a contempt must be some disrespect shown to the court. Contempts are usually incurred by a party's neglect or refusal to do some act which is in justice due to the other party in the cause; and the imprisonment which follows is at the prayer of the other party, a prayer to which the court cannot refuse to accede without a breach of its duty, and a denial of justice.(f) Thus where a husband neglects to pay alimony pendente lite,(g) where a wife refuses to return to her husband, though directed to do so by a decree of the court,(h) for nonpayment of costs,(i) or in any other case where the personal intervention of the principal is requisite to the act to be done, the practice is to take a monition against the party, which must be [ *499 ] personally served,(k) and it is upon disobedience to *this monition that the party is pronounced contumacious.(1) A party cannot be pronounced in contempt at the same time that his answers are held insufficient.(m) A party not giving in his answers on the day of the return of the decree, personally served, will be pronounced contumacious, and so will a witness for not appearing to a compulsory.(n) Such a monition is only in effect in the nature of a rule to show cause, and its issue is by no means conclusive, for upon its return the party monished may appear, and pray it to be superseded.(o) The significavit was suspended where the inability of a husband to pay alimony and costs was shown,(p) and when there was a mere informality, and the party had virtually obeyed, and was ready to obey the monition.(q) If a party committed for nonpayment of costs under an erroneous process be thereupon released, the ecclesiastical court is bound, at the application of the party to whom they are still due, to issue a new monition for payment of such costs. As where the court of King's Bench held the significavit defective in not stating with sufficient certainty the nature of the cause in which the costs were incurred, so as to fix it within the jurisdiction of the ecclesiastical court. (r) Before the court will pronounce a party in contempt for the purpose of proceeding in a cause, the residence of the party must be fixed within the jurisdiction of the court at or before the issuing of the citation. If the residence be once fixed before the citation issues, the court will presume a continuance of it until the contrary be shown. (s) Personal Service.]-Whatever is to be done personally by the principal party in the cause requires in strictness a personal service of the notice or decree for doing it upon that party. Hence the service of a decree for answers upon the proctor will not justify the court in putting the principal in contempt if these answers are not brought in, and decreeing him to be signified pursuant to the statute 6 53 Geo. 3, c. 127.(t) Sir John Nicholl said, "Where *500 ] steps are to be taken by the proctor merely, a mere assignation upon the proctor suffices, he being as to these dominus litis.' But where the personal intervention of the principal is requisite to the act to be done, as it is, for instance, where costs are taxed against him, or where sums are decreed to be paid by him on account of alimony, the practice is to take out a monition against the party, not merely to serve a notice on the proctor, which monition must be personally served upon the party in all cases, that is, where it is requisite that the proceeding should be conducted with any semblance of regularity." And the learned judge, after conceding that the modern practice as to personal answers was to serve the decree on the proctor only, and not on the principal, added, “But it is a very different question whether such a service would justify the court in putting the party in contempt, and proceeding to signify him, in order to his imprisonment, under the statute; a measure which I conceive .ecclesiastical courts to be only warranted in adopting where the prior proceedings have been conducted with the strictest regularity."(u) A case has occurred since the passing of the 2 & 3 Will. 4, c. 93, s. 2,(x) where there had not been a personal service, but by ways and means to enforce the payment of alimony pendente lite, the party could not be personally served, the instrument was stuck up at the Royal Exchange and on the chapel where the party was in the habit of officiating; and the court, considering that the husband must have had cognizance of the proceeding, pronounced him contumacious, and a significavit issued. (y) Before the court will make an order under the stat. 2 & 3 Will. 4, c. 93, there must be an attempt to enforce an (q) Hamerton v. Hamerton, 1 Hagg. Eccl. 23. (r) Austen v. Dugger, 1 Addams, 307. (8) Carden v. Carden, 1 Curteis, 558. (t) Durant v. Durant, 1 Addams, 114. (u) Ib. 121. (x) See ante, p. 497. (y) Hinxman v. Hinxman, cited 1 Curteis, 468. order of the ecclesiastical court; but if it clearly appears that the service has been evaded, the court will have no hesitation in pronouncing the party in contempt, and signifying it to the court of chancery; as where it appeared by the return that every attempt had been made to serve the *monition.(z) The court will not de[ *501 ] cline to enforce a monition against a party in contempt of the court of Queen's Bench, and residing abroad to evade the process of that court. The court will pronounce an Irish peer in contempt for non-payment of costs, and direct such contempt to be signified, leaving the lord chancellor to decide whether the writ de contumace capiendo should issue.(a) The order in the cursitor's office is, that in all cases where a significavit was prayed against a peer, the seal should not be affixed without notice to the lord chancellor.(b) Imprisonment for Contempt not in the Discretion of the Ecclesiastical Judge.]-Imprisonment for contempt is neither in the discretion nor terminable at the pleasure of the ecclesiastical judge by whom the party is pronounced in contempt. In a suit for restitution of conjugal rights, instituted by the husband, the wife pleaded cruelty, time was allowed her to produce her evidence, and that time having been repeatedly extended without the production of witnesses, the wife was decreed to return to her husband, and was imprisoned for contempt in not obeying the monition. On a petition presented by the wife, stating the great hardships which she had experienced and praying to be liberated, Sir John Nicholl said, carrying forbearance to the utmost point, the court could no longer, without an absolute denial of justice, refuse to signify the wife's contempt to the proper temporal jurisdiction on the demand of the husband. Here the authority of this court ceased-the imprisonment takes place under that of the temporal jurisdiction, nor has this court the power of releasing at pleasure, but only on the obedience of the party. This court can no more release in the way prayed than a judge at common law can, at pleasure, release a defendant who is imprisoned for non payment of damages recovered in an action. The imprisonment is here to enforce the legal rights of the husband; and unless the husband will consent to waive his rights, or unless she obey the monition, or unless it can be shown that she is not in a fit state of mind to obey, this court can take no step.(c) [ *502 ] *Significavit.]-There seems to be some ambiguity in the use of the word significavit; when the word is used alone it means the bishop's certificate of the excommunication into the court of chancery, in order to obtain the writ of excommunication; but where the words "writ of significavit" are used, the meaning is the same as the writ de excommunicato capiendo.(d) It is not necessary that the defendant should be resident in the diocese at the time of the excommunication, it is sufficient if he were there at the time of the citation.(e) What judges must certify.]-All the judges whose orders have been (z) Greenhill v. Greenhill, 1 Curteis, 268, 269. (a) Westmeath v. Westmeath, 2 Hagg. Eccl. R. 653. (b) Ib. 662. (c) Barlee v. Barlee, 1 Add. 306. |