Mode of objecting tificate. TITLE XLIV. OBJECTIONS AGAINST THE CERTIFICATE OF A CITATORY MANDATE; AND ABSOLUTION FROM AN UNJUST SENTENCE CAUSED BY A FALSE CERTIFICATE. I. A PERSON unjustly excommunicated' must appear by his proctor 2, and state as follows: II. "I (N.) exhibit by proxy for M., and make myself a a false cer- party for him, and, objecting against the certificate which has been introduced in this cause, I allege, that it is fictitious, false, fabricated, conceived in deceit, and against the facts of the case; more especially inasmuch as the mandatory named therein, never executed the said mandate; at least, not on the day and in the place feigned in the pretended certificate. And, I further allege, that it is impossible such execution could have taken place, because the said M., during the whole of the day specified, and for three, or at least two days, (preceding or following that day), was absent from the parish in which it is said, contrary to all truth, in the said pretended certificate, that the mandate was executed upon him; and further I allege, that he was continually, during the same time, in such a place, distant an hundred miles (or some other number of miles) from the said place, in which it is pretended the citation was executed." Negative affirmative, III. Thus it is that a negative joined to an affirmative allegajoined to an tion admits of proof equally with an affirmative; for when it is how proved. once ascertained, that the party supposed to be cited, was present in such a place, at such a time, his absence from all other places, at that time, follows as a matter of course . Other objections. IV. The objector may further allege the absence of the mandatory at a particular time from the place at which the certificate states that he was at that time, executing the citation: or he may bring forward other objections disproving the certificate. 1 No one can now be excommunicated for not obeying a citation. The 53d George III. ch. 127, § 1, 2, 3. abrogating that punishment, and substituting the writ de contumace capiendo, for the writ de excommunicato capiendo. -Ed. 2 He may appear personally and make the same objections.—Oughton. 3 Nihil enim abesse et adesse dicitur uno et eodem instante-Conset, 2. 3. 3. § 2. V. As, for instance, that the mandatory cited another person, and not the individual named in the mandate. In which case the allegation, to be complete, should state, in addition, that the mandatory executed the mandate in reality once only, and not oftener. For it might happen, that the mandatory, though at first he cited another person in error, afterwards corrected that mistake by citing the proper party. of the alle.. VI. Any one of the above-mentioned allegations, or any other Admission of the same kind, being admitted to proof, and a term probatory gation to being allowed, the person suffering under the sentence must proof. declare on his oath, that he will obey the lawful authority 2, and Oath. yield to the mandates of the church; and, at the same time, he must deliver the contumacy costs into the hands of the registrar 3. VII. If such party proves his allegation, not only the contumacy costs, which had been left with the registrar, must be restored to him, but further, his adversary is condemned in the expences occasioned by reason of this objection. 4 VIII. If, on the contrary, he (the objector) fails in making Contumacy good his proof, not only is he condemned in costs, but also the costs. contumacy charges, which had been deposited with the registrar, are to be delivered up to the other party, and he (the objector) is again pronounced excommunicated, unless he removes the causes for which he had been originally condemned. 5 1 Excommunication was the punishment formerly; now the offending party is decreed in contempt. See 53d George III. ch. 127.—Ed. 2 On this subject, see tit. 60, § 1.—Oughton. 3 "That is, into the registry. And then the party cited is to be absolved from the sentence of excommunication, until the day arrives for proving the objection against the certificate of the citation, in consequence of which certificate he had been excommunicated."—Ancient MSS. Oughton. 4"And then the party cited, as far as regards this charge, is to be absolved absolutely."-Ancient MS. Oughton. 5 1. The following are the various readings in an ancient MS. 2. Unless he makes satisfaction for that, on account of which he had been excommunicated. For instance, if he had been excommunicated for the non-payment of costs; or for the principal sum awarded by the sentence of the court, he must absolutely produce the costs, or the principal sum, and pay them, before he is absolved. 3. In the same way, if he had been excommunicated for not answering the allegations in a libel, he is not to be absolved, before he has given in his answer.-Oughton. Excommunication is now forbidden, and rendered illegal, in all such cases, by the provisions of the 53d George III. ch. 127, § 1, 2, 3.—Ed. Absolution with reservation. IX. But mark: the judge should not absolve the party objecting against a certificate from the sentence arising out of it, unless provisionally, i. e. until the day appointed for establishing the objection; (if the excommunication' was for non payment of costs, or on account of the principal sums in dispute); and the absolution is not complete, till after proof. X. It is also worthy of remark, (though the caution is not always sufficiently regarded 2), that it is the part of wisdom in the proctor (in order to avoid needless expences and protracted litigation) to confess at once the allegations of the adversary, as far as regards the aforesaid objections, if they are true: or, otherwise, to dissent from them, and to make protestation of their nullity, and to petition that they be rejected *. 3 OBJECTIONS AGAINST AN UNJUST SENTENCE ON ACCOUNT I. IF any one has been excommunicated, in consequence of 1 Now the decree de contumace capiendo.-Ed. 2 3 1. In an ancient MS. it is written as follows: "Two things are to be observed with reference to the petitions here and elsewhere mentioned and described. "2. Either the proctor against whom any allegation and petition are made, (as in the present title, that the certificate is false, &c. and, consequently, that the party excommunicated by reason thereof, should be absolved), must immediately disavow the allegations of his adversary, and protest against them as nullities, and allege, that they lead to no conclusions in law, nor can be legally admitted to proof, and he must pray that they be rejected. "3. Or, if the proctor against whom the preceding and similar allegations are made, knows them to be true, or believes them to be so, he must immediately confess them, for the sake of abridging the litigation, and curtailing the expence; or, if he is not sure whether the allegations are true or not, he must make inquiries of his client, and satisfy himself as quickly as possible, and act accordingly. "4. Otherwise, on such points as these, which are of little or no importance with reference to the principal matter in dispute, much time may be uselessly consumed, and needless expence incurred.”—Oughton. 5 So far forth as they are false.-Ed. By the 53d George III. ch. 127. no person can be excommunicated the production of a certificate, stating, that he had been diligently sought at his dwelling-house, in such a parish, and that, inasmuch as he kept himself concealed ', he had been cited by the fixing up of the mandate of the judge on the doors of the church', such excommunicated person may appear3, and allege, " that he Valid obdid not dwell himself, nor did any of his family reside in the said jections against the parish for any part of the half year immediately preceding the certificate alleged serving of the citation, nor did he hear of the pretended fixing of the citation, for he was an inhabitant of a different place, in means. a different parish for the whole of the above-mentioned time, and had his family residing with him there." On proof of this allegation, the party excommunicated is to be absolved, and, as stated above, he will obtain the expences incurred by the process. of a citation by ways and II. Thus, if, in consequence of the certificate of a primary Appeal. citation, or of any other original and personal decree, stating, "that N. was sought at such a house, or in such a parish,” (not being the house or parish of the party cited) the judge grants a citation or decree by ways and means: and the party obtaining such decree executes it by a public proclamation (although it be in the proper parish church of the party cited), and then, certifying to the execution of the mandate, causes the party to be excommunicated. This constitutes a just cause of appeal. To the author's knowledge, cases of this kind have been entertained by the high Court of Delegates. III. Or the party excommunicated in consequence of this Complaint of nullity. unless after a definitive sentence, or interlocutory decree, having the force and effect of a definitive sentence, pronounced as a spiritual censure for an offence of ecclesiastical cognizance. Consequently, now the practice must be altered, and may be stated as follows: " If any one has been pronounced contumacious and in contempt, and thereupon been taken and detained in prison by virtue of the writ de contumace capiendo, wherein it was stated, that the said party had been sought," &c.-Ed. I Was absent, or absconded. Conset, 2. 3. 3. § 2. 2 Of the said parish church. Conset, ibid. 3 By himself or his proctor.-Ed. 4 On this point consult tit. 63, § 6. and observations thereupon; also § 7 of the same title, and observations.—Oughton. 5 Now, instead of excommunication, the party is liable to be pronounced contumacious and in contempt, and to have the same signified to his majesty in chancery, and to be thereupon imprisoned by the writ de contumace capiendo.-Ed. • See Conset, 2. 3. 3. § 2.-Ed. 7 Now it is "pronounced contumacious and in contempt," &c.-Ed. Citation by ways and means a mandate by ways and means, may have his action of complaint before the same judge who excommunicated him, in a cause of nullity and unjust excommunication, and he will obtain sentence, as above1. IV. But mark; this appeal should be interposed, not only on account of the said sentence of excommunication, but also on account of granting a decree by ways and means, by reason of the said false certificate, viz. that the party was sought at his house, &c. V. For to decree that a party should be cited by ways and means in consequence of a certificate that he was sought in a grievance. place where he never resided, is the same as if a citation by ways and means had been decreed without any preceding primary citation; or as if any party (unless a fugitive, or one having no fixed habitation,) had been decreed to be cited by a public edict by ways and means, the said primary citation being omitted; which omission, without doubt, constitutes a grievance. TITLE XLVI. A PLAINTIFF MAY PROCEED IN A CAUSE, NOTWITHSTANDING THE DEFENDANT OBJECTS AGAINST THE CERTIFICATE OF Plaintiff may pro ceed in a I. NOTWITHSTANDING that a defendant, who was never in fact cited to appear in a cause, has been actually excommunicated 2 cause, for not appearing; such party on presenting himself before the though de- judge, either personally, or by his proctor, and stating his objects jection to the certificate, in order to obtain absolution; cannot against cer fendant ob tificate. 1 On such ground the party aggrieved may not only appeal to another judge, but he may complain to the same judge of nullity of proceedings. On proof whereof, he will obtain his costs, as above in § 1, 2. and in the next preceding title, § 7. See also part 2, tit. 280.-Oughton. 2 Now proceed according to the provisions of the 53d George III. ch. 127. -Ed. 8 Oughton refers to tit. 44, § 2. 4, 5., and tit. 45, § 1, 2; but now the proceedings depend upon the 53d George III. ch. 127.-Ed. Now it is "from the sentence of contumacy and contempt, and discharge from custody, inflicted in consequence of the said contumacy and contempt."-Ed. |