V. Then the judge, (conclusion being come to as in other Conclusion. summary causes ',) pronounces sentence against the party guilty Sentence. of contempt, to the effect specified in the title immediately preceding this; or he pronounces judgment as above, by his interlocutory decree". ABSENCE. TITLE LIV. WHEN A PERSON IS SAID TO BE ABSENT: AND HOW absent. I. A PERSON is said to be absent or present, according to the Who are common way of speech, who is absent from the usual place of his said to be dwelling and sometimes he is said to be absent, though he has a : dwelling in the place: for, according to Castrensis o, absence is sometimes said to be in respect of a man's person, and sometimes in respect of his dwelling. Thus persons are said to be absent from a corporation, who are in the city or corporation, and who do not live in the place, when they ought to give their attendance and service. And he is said to be absent, who is in another and that afterwards another, or second, assignation to hear discussions in the cause, or the final decree, is the same with an assignation to hear sentence (ex secundá), on the second assignment, and to inform. In confirmation of this view of the author's meaning, see the observations in the next succeeding note, which have been extracted from ancient MSS.—Oughton. 1. Here it is added, in some MSS., "two assignations to hear discussions bring on the conclusion." 2. In the same way as in other summary causes, two assignations to hear sentence, (as in tit. 148, "Of the conclusion in a summary cause," § 3, 4. and in tit. 144, § 2.) are said to bring on the conclusion.—Oughton. 2 i. e. the judge delivers sentence by pronouncing the defendant, in contempt, enjoining him to do penance, and condemning him in costs, as in tit. 52, § 4.-Oughton. 3 i. e. as in tit. 52, § 4, at the conclusion.—Oughton. Concerning this interlocutory decree, see tit. 151.-Oughton. 5 This title is taken from Ayliffe's Parergon.-Ed. 6 Castrensis, Cons. 94, lib. i.—Ayliffe. 7 Code 10, 63. 6.-Ayliffe. Different kinds of absence. 1 territory or jurisdiction, according to Bartolus and Baldus 2. And so likewise is that person said to be absent, who is absent with his family, though he does sometimes in his own person return to the city; because as he is not said to be resident in a place, who comes thither, with a purpose of retiring immediately from thence; so also he is said to be absent, who is absent in such a case with his family. But a person who has left his family and children in the city or any other place, is not said to be absent from thence, in respect of his dwelling. As a person is said to be absent from court, when he has been cited thereunto; so a person may be said to be absent, who is in a place, but cannot easily be convened. A person who is out of the kingdom, or not in his own proper diocese or province, is said to be absent: and so likewise is a person who cannot be found in his own house upon a summons: for he who absconds and conceals himself from the beadle or apparitor, so that he cannot be summoned, may be said to be absent, though present in some respects. II. Now absence is of a fourfold kind or species. The first is called a necessary absence, as in banished persons; and this is entirely necessary. A second kind of absence is said to be necessary and voluntary; as upon account of the state or commonwealth; or in the service of the church, and the like, according to the canon law. A third kind is what civilians call a probable absence, as that of students on the score of study. And the fourth is an absence entirely voluntary; as on the account of buying and selling, trade, merchandise, and the like. Some add a fifth kind of absence, which is committed "cum dolo et culpa," by a man's non-appearance on a citation, as in a contumacious person, who, in hatred of his contumacy, is by the law in some respects reputed as a person present. A necessary absence is always prejudicial to banished or outlawed persons, and never helps them; because a banished person, who is absent out of necessity, according to Romanus' and others, retains all things onerous to himself, as a punishment for his crime and therefore in matters of damage, he is accounted as a 1 Bartolus. In Digests, lib. iii, ff. 1. 45. 2.—Ayliffe. 2 Baldus. In Code, lib. xxxiii. 46. 1.-Ayliffe. 3 Aug. Cons. 270.—Ayliffe. 4 Digest. 4. 6. 35.-Ayliffe. 5 Felin. in ch. 10. X. 1. 29.-Ayliffe. 6 Gloss. in lib. xiii. ch. 3. 1.—Ayliffe. person present to discharge and pay incumbrances and other duties; but in other matters of damage, he is deemed as a pilgrim, and an absent person, according to Alexander 2, in hatred and detestation of him. Necessary and voluntary absence, which is said to be on affairs of state, ought not to prejudice the absent person, or any other by his means, but in all favourable cases he ought to be reckoned as a person present. According to the canon law, he is said to be absent on a necessary account, i. e. absent on the score of religion, or, as Castrensis words it3, in favour of religion. Absence entirely voluntary is sometimes prejudicial, and induces a punishment: for thus a scholar who is absent from the University for five years together, is struck or rased out of the matriculation book; and upon his coming de novo to the University, ought to be again matriculated: but this is not practised with us here in England. A person who goes out of his own country in order to travel abroad after he has contracted a dwelling, or gained a settlement in such a place, is presumed to have left his dwelling place or settlement in his own country, (according to the civil law ), if, on his departure from thence, he is absent for five years together: and so he is said to have left such place of settlement in a foreign country upon his return home again. Sometimes absence is an excuse to a person in such a manner, that a person voluntarily absent, is said to have a just plea of ignorance. And, therefore, in matters of damage, he is excused, according to Oldradus o. 6 summoned. III. According to the canon law absent persons ought to be Absent summoned in four particular cases, viz.; first, in elections; persons secondly, in collating to prebends, and the like, when such collation belongs to the chapter; thirdly, in the admission of canons; and fourthly, in all cessations from divine service. But in the three first cases, that is not null and void which is done without citing these persons; but it may be appealed, and an action likewise lies for the contempt. But in the fourth case, when a law or canon is made against such persons as refrain or keep from divine service, all persons ought to be cited; otherwise, according 1 Bald. Cons. 54, lib. v.-Ayliffe. 2 Alexander. Cons. 75. n. 10, lib. i.-Ayliffe. 3 Castrensis. In lib. viii. D. 3. 3.-Ayliffe. Alex. Cons. 54. n. 5. lib. iv.—Ayliffe. 5 Alex. Cons. ibid.-Ayliffe. • Oldradus. Cons. 312. n. 7.—Ayliffe. Absence blamable ous. to Oldradus', such absence makes it a nullity. For in those things which are done out of necessity, as elections, and the like, a nullity does not arise through want of citing the absent persons, because they may appeal and prosecute the contempt. But in such matters as are done out of will and choice, and wherein an action lies for those things which concern every one, a nullity arises from not citing the absent persons 2, as aforesaid, because absent persons are not of necessity to be summoned but in the foregoing cases; and especially, if two parts in three of the canons or chapter are present: but if these two parts in three of the canons or chapter are not present, then, according to Calderinus, the absent persons ought to be cited. IV. Absence is always presumed to be malicious and blamable and malici- when a man, who is obliged to perform or do a thing, does absent himself thereupon. Thus, when a person is obliged to pay a legacy or debt in some certain place and time, if he then absents himself, he seems to be maliciously or fraudulently absent, because he is obliged to be present to pay the said legacy or debt; and, according to the civil law, such a person absent may be proceeded against even to a sequestration. A clergyman is obliged to reside at his church, and a husband to live with his wife: and, therefore, if either of these persons absent themselves, their absence is presumed to be blamable and malicious; and if they are absent without a just cause, they may be proceeded against by a citation made ad domum. But this ought to be only in a particular case, as when a wife impleads or sues her husband upon the account of his absence, or to render her due benevolence, or the church impleads a non-resident clerk. But it is otherwise if another person will bring either a real or personal action against them, or will proceed against them by way of accusation or inquisition: for then a citation made "ad domum," is not sufficient in a process, where the party may be greatly prejudiced thereby, if it does not otherwise appear that his absence was either blamable or malicious. Absence is also said to be blamable and malicious, when a man goes away and leaves his jurisdiction on the receipt of a citation, with a purpose of avoiding justice, and such a person shall be punished for his contumacy: and in some cases, according to the canon law, it may be 1 Oldradus. Cons. 259. n. 8.-Ayliffe. 2 D. Cons. n. 9.-Ayliffe. 3 Calderinus. Cons. 3. an duæ partes.-Ayliffe. pro ceeded even to a definitive sentence. For though an absent person cannot be punished according to the civil law, unless he evidently flies from justice; yet it is otherwise by the canon law; because, according to Oldradus ', it is well enough if there be a sufficient "liquet" of the cause, and suit has been contested thereupon. For a bishop may, in order to extirpate vice out of his diocese, and when the process is " de periculo animæ," proceed against an absent person according to that law. And so he may do in every case relating to benefices, and in a cause which is summary of its own nature, wherein contestation of suit is not necessary. CONTUMACY. TITLE LV. THE EXHIBITION OF A CITATION BEFORE THE JUDGE, AND THE MODE OF PETITIONING, THAT A PARTY NOT APPEARING MAY BE PRONOUNCED CONTUMACIOUS 2, AND, IN PAIN THEREOF, BE EXCOMMUNICATED 3. I. IN the first place, the proctor of the plaintiff (on the day of Defendant the return of the mandate, for the appearance of the adverse cited. party *), must either procure the plaintiff himself to be present in court to constitute him as his proctor; or he must exhibit a proxy 1 Oldradus. Cons. 65.-Ayliffe. 2 What contumacy is, who may be said to be contumacious, and in how many ways it is committed; the mode of proceeding against a contumacious person; the punishment of contumacy; and the order of their infliction; are more fully explained by Alciatus, in Prax. fol. 86-100. Hostiensis, tit. Si quis jus dic. in sum. n. i. de contum. Ummius Disput. 6. n. 3. Ord. Cameral. p. 3. tit. 14. Jacob. Blum. proc. Cam. tit. 66. Jacob. Ayrer. processus, p. i. ch. 4. Obs. 3. n. 6. Contumacia est erga judicem commissa inobedientia.-Conset, 6. 2. 1. § 1. 3 According to the laws now in force, the party not appearing has his contumacy certified to his majesty in chancery.-Ed. * Or "on the day appointed for the appearance of the defendant;" or, on which the defendant was summoned to appear," because, if he appears, there can be no reason for accusing his contumacy, as in § 2.-Oughton. |