demned in the said sum of so rated and assessed upon CHAP. VII. PRACTICE IN COURTS. them as aforesaid, and also in the costs made and to be ECCLESIASTICAL made in this cause on the part and behalf of the said H. G. and C. G., the churchwardens aforesaid, and that they may be compelled to the due payment thereof by you and your definitive sentence or final decree, to be given and interposed in this cause, and that further may be done and decreed in this behalf what shall be just and lawful. The party proponent not obliging himself to prove all and singular the premises, nor to the burthen of a superfluous proof, against which he protests, but prays that so far as he shall prove in the premises, so far he may obtain in his said suit the benefit of the law being always preserved, humbly imploring the aid of your office in this behalf. M. SWABEY, CHAP. VII. PRACTICE IN ECCLESIASTICAL COURTS. PRACTICE AS TO ANSWERS IN GENERAL. (e) IT has been already stated, that the answers on oath of an adverse party to the plea or allegation are usually required and enforced (except in suits of a criminal nature.) The answers are prepared by the practitioner, and either give a positive or qualified admission or denial to the averments contained in the plea, state ignorance of the circumstances pleaded, or enter into explanations respecting the same; they are afterwards submitted to the advocate engaged in the cause for him to settle, and after they have been carefully examined and approved of by the party, they are sworn to before the judge or his surrogate, and deposited in the registry with the other papers in the cause. The opponent parties' proctor then obtains an office copy thereof, submits the same to his counsel to advise upon their sufficiency; and should he be of opinion that they are insufficient, the objections taken are mentioned, and notice thereof sent to the judge; who, after hearing the arguments of counsel on both sides, decides upon their sufficiency or insufficiency, and if his decision be in the negative, further amended answers are given in. The form subjoined (O.) contains the answers of a party contesting a will to an allegation on behalf of the executor propounding the same. An alleged truc executor's answer to an allegation of a person claiming to propound another will. 0. Extracted from the Registry of the Prerogative Court of In the Prerogative Court of Canterbury. F. J. & C. H. J. C. & W. A. The personal answers of J. C., the nephew and sole executor named in the true and original last will and testament, bearing date on or about the day of, in the year of our Lord one thousand eight hundred and, of E. F., late of in the county of ——, Esquire, deceased, to the several positions or articles of a certain allegation or common condidit, bearing date the caveat day after Trinity Term, to wit, the day of, one thousand eight hundred and thirty —, (e) Sec ante, Part IV. 482. PRACTICE IN given in and admitted in this cause on the part and behalf of CHAP. VII. F. J., spinster, and C. H., the pretended executors named in a ECCLESIASTICAL pretended will of the said deceased, bearing date, as pretended, the day of one thousand eight hundred and thirty made and given by virtue of the corporal oath of the said J. C., and are as follows, to wit: day of First. To the first position or article of the said allegation, the respondent answering, saith he disbelieves and denies that the said E. F., the deceased, in this cause acting as a free agent, and not being unduly influenced and controlled by F. J. and C. H., the other parties in this cause, and more especially by the said C. H., or being fully aware of the then state of his property or testamentary arrangements, or in a state so to be, having a mind and intention to make his last will and testament, and thereby to settle and dispose of his estate and effects, did give directions or instructions for the making and drawing thereof, or that, pursuant and agreeably to such directions and instructions, the will articulate propounded in this cause, on the part and behalf of the said F. J. and C. H., was drawn up and reduced into writing, or if the same was read over to or by the said deceased, that he knew or understood the contents thereof, or that he the deceased, acting as a free agent, and not under undue influence and control, or being fully conscious of the nature and effect of what he was doing, did, for any purpose, on or about the one thousand eight hundred and thirty set and subscribe his name or affix his seal to the said will, or did publish or declare the same as and for his last will and testament, in the presence or hearing of witnesses as articulate. And the respondent further answering saith, that whether any persons did, in the manner articulate, or in any manner set and subscribe their names as witnesses to the due execution thereof, he has no sufficient grounds to enable him to set forth from belief or otherwise; but he disbelieves and denies that the said deceased, acting as a free agent, and not under undue influence and control as aforesaid, did, in or of such pretended will nominate and appoint the said F. J. or C. H. executors, or did give, will, bequeath, dispose, and do in all things as in the said pretended will is contained as articulate. And further answering, the respondent says, although he admits that the said deceased at the time articulate was not of absolutely unsound mind, as well as his body, was then so very much impaired as to render him incompetent fully to comprehend the nature and effect of complicated matters, and the various claims upon his testamentary COURTS. CHAP. VII. bounty, then legally, and by relationship and affection subsistPRACTICE IN ing, and that he was then in consequence peculiarly exposed COURTS. to be practised upon by artful and designing persons, that by ECCLESIASTICAL reason thereof he disbelieves and denies that the said deceased was at the time articulate, of perfect, sound, and disposing mind, memory, and understanding, or well knew or understood what he said and did, or what was said and done in his presence, or talked or discoursed rationally or sensibly, or was capable of giving instructions for or of making his last will and testament, or of doing any other serious or rational act requiring thought, judgment, and reflection. And further or otherwise this respondent disbelieves and denies the said position or article to be true. Second. To the second position or article of the said allegation this respondent answering, saith, he admits and believes that he hath hereinbefore admitted and believed, and disbelieves and denies what he hath hereinbefore disbelieved and denied. of, one thousand eight hundred and thirty -, repeated and acknow ledged before In the presence of Surrogate. One of the Deputy Registers. WITNESSES. CHAP. VII. PRACTICE IN ECCLESIASTICAL COURTS. (a) ance. Ir frequently occurs that witnesses refuse to attend for the purpose of being examined in a cause pending in the Ecclesiastical Court; the judge, however, has a very salutary power to enforce the attendance, upon the proctor of a party alleging that J. T. is a necessary witness, and that he has been tendered his expenses, but refuses to attend and give evidence, the judge or his surrogate will direct a compulsory to issue under the seal Compulsory to of the Court wherein the cause is pending (see the following compel attendform (P.)). Should the person, on being served therewith, treat the same with contempt, by not obeying the order or mandate therein contained, the proctor of the party, at whose suit the compulsory issues, procures a written notice to be served upon him, intimating his intention of applying to the Court on a stated day to pronounce him (the witness not attending) in contempt; and, should this notice be unheeded, the Court will generally pronounce such person in contempt, and direct the same to be signified (see form of significavit (Q.) post, 225), Significavit. whereupon a writ, contumaci capiendo (see form (R.) post, 225), issues from the Court of Chancery to take the offending party into custody, where he remains until he declares his readiness to obey the mandate of the Court; and upon so doing a writ Writ of deliverof deliverance (see form (S.) post, 225), passes under the seal ance. of the Ecclesiastical Court to release him from custody. P. Written notice of proceeding for a contempt. Contumaci capi endo. tary cause, to order to their William, by Divine Providence, Archbishop of Canterbury, Form of ComPrimate of all England and Metropolitan. To all and singular pulsory served upon witnesses clerks and literate persons, whomsoever and wheresoever in in a testamenand throughout our whole province of Canterbury, greet procure their ing. Whereas the Right Honorable Sir Herbert Jenner, attendance, in Knight, Doctor of Laws, Master, Keeper, or Commissary of being examined. our Prerogative Court of Canterbury, lawfully constituted, rightly and duly proceeding in a certain cause or business of proving in solemn form of law, by good and sufficient witnesses, the last will and testament of A. B., late of, in the parish of, in the county of, deceased, bearing date the day of last, promoted and brought by C. D., the sole executor named in the said will, on the one part, against E. F., the natural and lawful brother of the said deceased, (a) As to proceedings to compel appearance, and for contempts, see 2 & 3 W. 4, c. 93; and 2 Chitty & Hulme's Statutes, 369. |