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disobeyed must certify under stat. 53 Geo. 3, c. 127, s. 1; two out of three judges delegate were held incompetent to do so.() The bishop's surrogate cannot signify the contempt
, in order to the issuing of the writ de contamace capiendo.(g) Where the court pronounced a defendant excommunicate and sentenced him to seven days imprisonment, it was suggested that under the stat. 53 Geo. 3, c. 129, s. 3, it was necessary that the court should certify the sentence to the court of chancery; but the court held that it was not necessary to certify till called upon to proceed to the execution of the sentence; if called upon the court will be bound to proceed.(h)
Writ issued by Chancery.]—It is competent to the court of chancery to issue several concurrent writs de contumace capiendo.(i) Where the first writ is quashed, another must issue from the court of chancery.(j) A second writ sued out of chancery, without any return made to the first, was held to be regular.(k) Before the writ issues to the sheriff, it goes into the court of Queen's Bench, to be entered of record, and that court may annul it for matter of nullity apparent on the face of it.(1)
The Significavit must appear to be for Matter of Ecclesiastical Coga nizance.)–At the common law, a certificate of the bishop, whereupon a significavit was to be granted, ought *to express the cause, and the suit against him specially in the certificate,
[ *503 ] to the end the temporal judges may see whether the spiritual court has cognizance of the original cause, and whether the excommunication be according to law; that if it be otherwise, they may write to them to absolve ihe party.(m) The bishop's certificate is not avoided by his death.(n) Two significavits were quashed because it was only stated to be in a cause which came by appeal concerning a matter merely spiritual; for the court held that they were not to lend their assistance but where it appeared clearly they had jurisdiction, and are not to trust the ecclesiastical courts to determine what is a matter merely spiritual.(o) The sentence must not be in general terms to do the usual penance, however well its limits may be understood in the ecclesiastical court, but it must specify what particular penance shall be done ; and for that defect in the sentence the party was discharged.(p) On an application for a habeas corpus to bring up the defendant in order that he might be discharged out of custody on the ground of a defect in the warrant of commitment, it appeared on the face of the warrant that he was committed for a contumacy, in not paying a bill of taxed costs to a proctor “ in a certain cause of appeal and complaint of nullity lately depending in the Arches court of Canterbury, between J. A. appellani, and R. D. appellate.” The warrant was held insufficient, in not stating with certainty the nature of the cause so as to show that it was one apparently within the jurisdiction of the
& Ell. 576.
(f) Rex v, Ricketts, 6 Ad. & E. 537. (k) Rer v. Blake, 4 B. & Ad. 355. (g) Reg. v. Jones, 21 June, 1839. 10 Ad. (1) 2 Hagg. Eccl. R. 661, 662.
(m) 2 Inst. 623. (h) Hoile v. Scales, 2 Hagg. Eccl. R. 597. (n) 1 Inst. 134; 2 Burn's Eccl. L. 249. (i) Rex v. Blake, 2 Nev. & M. 312; 4 B. See io Geo. 4, c. 53, ss. 12, 13.
(0) Rer v. Eyre, Str. 1067-1189. (,1) Rer v. Eyre, 2 Str. 1190.
(p) Rex v. Maby, 3 Dowl. & R.570. August, 1841.-Z
& Ad. 355.
ecclesiastical court.(9) Where a writ de contumace capiendo set out the sentence of the spiritual court, which, amongst other matters, directed certain costs to be paid by the defendant, the court of Queen's Bench refused to quash the writ for an alleged invalidity in the sentence as to the other matters, that part of it being good which awarded costs against the defendant, who was therefore in contempt for the non-payment of them.(r) [*504 ]
* Return of Writ.]—All writs de excommunicato capiendo
to be awarded out of chancery shall be made in terin time, returnable in the ensuing term into the King's Bench, and shall be there openly delivered of record to the sheriff
, who shall be amerced in case the writ be not duly returned.(s) The stat. 1 Will. 4, c. 3, s. 2, which enacts that all writs returnable in the King's Bench, Common Pleas, or Exchequer, on general return days, may be made returnable on the third day exclusive before the commencement of each term and the day of appearance, shall, as heretofore, be the third day after such return, exclusive of the day of the return, applies to all writs, not merely to those on mesne process, and consequently it extends to a writ de contumace capiendo.(t) On the return day of the writ, the sheriff is not compellable to bring in the body; but on return of non est inventus, a cupias shall issue, returnable in term time two months after the teste, with proclamations against the party to surrender, penalty 101. ; and on his default such penalty shall be estreated, and a fresh capias with like proclamation to surrender on forfeiture of 201. to the crown, and so continually until the party shall surrender.(u) A writ of capias cum proclamatione, under statutes 5 Eliz. c. 23, and 53 Geo. 3, c. 127, must issue the same term in which the return to the writ of capias de contumace capiendo is made; and if a term intervene, a discontinuance is worked, and the process is irregular.(x)
Residence of Party.)-By stat. 53 Geo. 3, c. 127, the writ must be directed to the sheriff of that county of which the party is described to be in the significavit. A writ de contumace capiendo is bad, and will be set aside, if it be directed to the sheriff of one county, and it appear by the writ that the defendant is resident in another. And that sufficiently appears if the party be described as of the latter county.(y)
Nature of Commitment.]—The writ de contumace capiendo is not properly speaking a commitment in execution, but for contempt; a [ *505 ]
party therefore in custody for contempt, in *disobeying
ihe sentence of the ecclesiastical court to pay a sum less than 201. and costs, is not within the act 48 Geo. 3, c. 123, for the discharge of debtors in execution for small debts from imprisonment in certain cases, and cannot be discharged under it.(z) A party already in the custody of the marshal may be charged in such custody with the writ de contumace capiendo, (a) and as it seems is
(9) Rex v. Dugger, 5 B. & Ald. 791 ; In re Gule, 1 Harr. & Woll. 59.
(o) Kington v. Hack, 3 Nev. & P.3.
(8) Stat. 5 Eliz. c. 23, s. 1; Impey's Of. fice of Sheriff, 367, 6th ed.
(1) Rez v. Blake, 4 B. & Ad. 355.
(u) 5 Eliz. c. 23, s. 2.
(3) Reg. v. Ricketts, 1 Perry & D. 150; 2 Jurist, 1039,
(y) Rex v. Ricketts, 6 Ad. & Ell. 537.
entitled to the benefit of the rules of the Queen's Bench prison.(b) Consequently if a party be imprisoned in such a case in a county prison, he may be removed into the Queen's Bench prison, and then obtain the benefit of the rules.
The discharge of any prisoner by the insolvent debtors' court may extend to all process issuing from any court, for any contempt of any court, ecclesiastical or civil, for nonpayment of money, or of costs or expenses in any court ecclesiastical or civil, and in such case such discharge shall be deemed to extend also to all costs which such prisoner would be liable to pay in consequence or by reason of such contempt or on purging the same.(c)
Form of the Pleadings.]— Causes in their quality are technically classed and described as plenary and summary, though in modern practice there is substantially but little difference in the mode of proceeding. All causes in the prerogative court are summary; so are proceedings on appeals before the privy council, whatever be the character of the original causes; but other causes, whether of a criminal or civil nature, are plenary.(d) Plenary causes, or ordinary causes, are those which require a solemn order in the proceedings; as the contestation of suit, a term assigned to propound and invoke all acts, &c., a term to conclude and a due form of concluding in that term, &c., and thence it is that they are called plenary.(e) The first plea bears different names in the different descriptions of causes. In criminal proceedings, the first plea is termed the articles ; in form, it *runs in the name of the judge, who articles and objects the facts charged against the defendant; in plenary
[ *506 ] causes, not criminal, the first plea is termed the libel, and runs in the name of the party or his proctor, who alleges and propounds the facts founding the demand; in testamentary causes, the first plea is termed an allegation. Every subsequent plea, in all causes, whether responsive or rejoining, and by whaiever party given, is termed an allegation. Each of these pleas contains a statement of the facts upon which the party founds his demand for relief, or his defence; resembling the bill and answer in equity, except that the allegation is broken into separate positions or articles: the facts are alleged under separate heads, according to the subject-matter, or the order of time in which they have occurred. Under this form of pleading, the witnesses are produced and examined only to particular articles of the allegation, containing the facts within their knowledge ; a notice or designation of the witnesses being delivered to the adverse party, who is thereby distinctly apprised of the points to which he should address his cross-examination of each witness, as well as the matters which it may be necessary for him to contradict or explain by counterpleading (f)
Of the Libel.]—Instead of the declaration at common law, or bill in equity, the statement of the complaint is termed a libel, libellus, a little book containing articles drawn out in a formal allegation, setting forth the complainant's ground of complaint.(g) A libel has been
(b) Ib.; see Rex v. Buckland, 1 Str. 413. (c) 1 & 2 Vict. c. 110, s. 79; 7 Geo. 4, c. 57, s. 50.
(d) Rep. Eccl. Comm. p. 16.
(e) Conset. 22 ; Cockburn, 6, 7.
defined to be “the plaintiff's petition or allegation, made and exhibited in a judicial process, with some solemnity of law;" it has also been called “ a short and well ordered writing, setting forth in a clear manner, as well to the judge as to the defendant, the plaintiff or accuser's intention in judgment; so that a libel ought to be short and not verbose, for the law abhors a prolixity of words.” “ Ewery solemn libel,” ought to contain five things; first, the name of the plaintiff, who makes a demand by bringing his action; secondly, the thing itself in demand or controversy; thirdly, the name of the defendant [ *507 ]
from whom *the demand is made ; fourthly, the action
whereby the demand is made and the defendant sued ; and, fifthly, it ought to mention the judge or person by whom judg. ment is given, with a description of his power and commission; all which things are thus summed up in Latin, quis, quid, a quo, qualiter, et coram quo petatur.(m)" Copies of the libels in suits in the spiritual courts are to be duly delivered to the party requiring the same.(n) If the spiritual court refuses to give a copy of the libel, a prohibition will be granted quousque ; but there must be an affidavit' that such copy was demanded and refused.(o) The libel or complaint of the plaintiff is generally limited by the citation, beyond which it cannot be extended.(p). The libel must contain a distinct averment of the ground of complaint, as we have already seen in considering suits for divorce by reason of adultery.(9). A libel or plea may be rejected if it discloses a case so palpably false that it cannot be proved, or if it is apparent, from the facts pleaded, that the complaining party is barred.(r) Where a legal ground for the suit appears on the face of the libel, it seems sufficient to state the facts upon which the suit is founded. In a libel for restitution of conjugal rights, it is not necessary to plead specifically that the parties were of twenty-one years of age at the time of the marriage, if it is averred that the inarriage was lawfully solemnized in consequence of a license duly obtained.(s) In suits of nullity of marriage the nature and characier of the alleged marriage sought to be set aside should be distinctly pleaded.(t) It is usual to plead consummation, cohabitation, and mutual acknowledg. ment, although a marriage duly solemnized may be valid without
them.(u) Where reliance is placed on the *general [*508 ) it is not necessary to plead it.(x) But a law
peculiar to any class or sect, which is brought forward in support or justification of an act, should be distinctly pleaded.(y) Thus in a suit between two Jews, it was suggested that the Jewish religious regulations
(m) Ayliffe, Parer. 346; Conset. p. 402, (n) 2 Hen.5, st. 1, c. 3. thus describes these five qualities in verse. (0) Vent. 252; 6 Mod. 308; Bac. Abr. Quis, quid, coram quo, quo jure petatur, et a Eccl. Courls (E.) quo
(p) 4 Hagg. Eccl. R. 89. Rectè compositus quique libellus habet.
(9) Ante, pp. 398—400. of which this English translation is (1) 1 Hagg. Eccl. R. 766; ante, p. 400. given.
(8) 2 Phill. 119; 1 Hagg. Eccl. R. 776. Each plaintiff and defendant's name,
(t) 2 Addams, 386; ante, p. 113, n. (b) And eke the judge who tries the same; (u) 2 Addams, 398. That non-residence The thing deinanded and the right whereby ought not be pleaded, see ante, pp. 239, 240. You urge to have it granted instantly:
(3) 1 Hagg. Cons. R. 172. He doth a libel write and well compose,
(y) Ib. 219. Who forms the same omitting none of those.
allowed concubines. But if by the Mosaic law, as at present received, there be any such privilege among the Jews themselves, Lord Stowell said it would be a great question how it could be attended to in a Christian court, to which they had resorted, and if it could be noticed, it ought to have been specially pleaded, but he thought it could not.(z) In a case depending upon the law of Scotland, or a foreign law, such law should be pleaded.(a)
Echibits in Supply of Proof.]—In libels in the ecclesiastical court it is usual to plead, in supply of proof of the statements, and to annex and pray to be taken as part of the libel, copies of registers, or other documents. Deeds should not be annexed to an allegation, but be deposited in the registry, and the material parts only recited in the plea.(b) When any exhibits are pleaded in supply of proof, the proctor of the adverse party shall, on the day on which the plea is admitted, declare whether he confesses or denies the handwriting as pleaded of such exhibits, and if the handwriting be denied and afterwards proved, the costs occasioned by the proof shall be paid by the party who denied the handwriting, unless the court shall think fit to direct otherwise.(c)
Pleading Contents of an Instrument.]—It is a settled rule that a party cannot plead the contents of an instrument, unless it is destroyed, or in the possession of the adverse party. Therefore the court reformed an article in a libel pleading a correspondence between the defendant and the party with whom he was charged to have committed adultery, where the letters were not annexed to the libel, nor was it pleaded that they were in the possession of or under the control of his wife.(d) The contents of or extracts from written documents must not be pleaded without annexing the same; and even if *the adverse counsel do not object to the non-annexa.
[*509] tion, the court must take the objection, for it cannot adjudicate a case on that which is not legal evidence.(d) But where a letter is pleaded to be in the possession of the adverse party, either passages from or the contents of the letter may be pleaded and substantiated in the best way possible, and it will be left to the other party to produce the letter or not, as may be deemed advisable.(e) The ecclesiastical court cannot inquire criminally into cases where it would otherwise inquire if not cognizable at common law, but we have seen that a conviction and felonious act may be pleaded as a necessary fact of the evidence in a civil suit.(f) The finding of a true bill, or the conviction of a witness for perjury, is no ground at common law for a new trial, nor in equity for a supplemental bill, so they cannot avail to the postponement of ihe hearing of a cause depending in the ecclesiastical courts.(g)
(2) D'Aguilar v, D'Aguilar, 1 Hagg. (d) Neeld v. Neeld, 4 Hagg. Eccl. R. 272. Eccl. R. 785.
(e) Croft v. Croft, 3 Hagg. Eccl. R. 317. (a) Ante, p. 113; Hagg. Cons. R. 371. Soe ante, 402. 431.
(f) Bromley v. Bromley, 1 Hagg. Cons. (6) Mynn v. Robinson, 1 Hagg. Eccl. R. R. 141, n.; ante, p. 223—231. 401. 69.
(g) Maclean v. Maclean, 2 Hagg. Eccl. R. CC). Order of Court, 3rd Sess. Hilary Term, 601; i Bing: 339 ; Warwick v. Bruce, 4 1830; 2 Hagg. Eccl. R. xvi.
Maule & s. 150; Bartlett v. Pickersgill, 4 (d) Morse v. Morse, 2 Hagg. Eccl. R. 608. East, 577, n.