adjudicated with the actuary. But, if unjustly excommunicated, on proof of that fact, the deposit will be immediately delivered up to him. II. The same course, as to the deposit, is to be pursued towards the excommunicated person, who alleges, that he has already paid the principal sum, or the costs of the suit. III. Because, having been, first, admonished to pay on such a day, and then cited to appear on some subsequent day, to show cause why he should not be excommunicated for nonpayment, he ought to have appeared on the day specified, and have alleged the payment, and thus have freed himself from the contumacy. 5. The present practice was first introduced, as the author learnt from his predecessors, on the ground that excommunication was not denounced before the party who was bound to pay the abovementioned sums had been legally admonished to do so, (what follows is on the supposition that the party confesses the legality of the monition, and alleges that he has paid the required sums) on a certain day fixed upon for that purpose; and had again been cited (supposing him not to have paid before, or on the day above named) to appear on some other stated day, to show cause why he should not be excommunicated on account of the non-payment thereof; and because the party so admonished and cited, though he had paid the costs, or the principal sum, yet should have appeared, to do away with the charge of contumacy, at the time required, or should have signified the payment to his proctor, that an allegation might be made to that effect: for not doing this, he was justly excommunicated. 6. Add, furthermore, that if any excommunicated person, in the above cases, should be absolved unconditionally, as soon as he alleged the payment, and requested a term to prove the same, supposing the allegation turned out not to be true, such absolution would be greatly to the prejudice of the party who obtained the sentence. For he would be obliged to admonish afresh the party absolved to pay the above-mentioned sums, within a specified time, and in case of his not doing so, would have to procure his excommunication a second, and third, and fourth time.-Oughton. 1 The tenor of the monition, according to the present practice, is different. Now the form is to pay the money, within the space of so many days after the execution of the monition, under pain of the sentence of the greater excommunication, still, as formerly, promulged on account of the non-payment. See observations in tit. 162, note 3, also tit. 163, § 1, 2.-Oughton. IV. Nevertheless, on proof of the previous payment, not only the deposit is to be restored; but fur communicated recovers the expences to which he has ther, the party unjustly ex Deposit with the registrar. TITLE LXVI. IN WHAT CASES THE CONTUMACY COSTS MUST BE I. IF any one has not appealed from the sentence of excommunication, till after he has remained excommunicated forty days, subsequent to denunciation and the significavit for his apprehension; then, on seeking absolution, it will be refused him, unless he Contumacy first makes a deposit in the 11. Notwithstanding the above reference, there is no title any where to be found on the subject of these contumacy charges. In its place, therefore, the following observations are substituted, which are extracted from various ancient authorities. (Conset observes, "On what these expences are, Mr. Clarke says, you must read title Quæ expensæ dicuntur expense contumaciæ, and there you may be fully informed. It is likely you may be so, if you can find it, but I am sure I find not such a title in all his book; therefore I refer you to Lanfranc, Alciatus, and others." Conset, part 1. ch. 1. sect. 3. § 4.) 2. Besides certain costs, which are called contumacy costs, for instance, two pence (as in tit. 67. § 8.) for every mile which the excommunicated person lives from the seat of judicature, are also to be added expences which are necessarily incurred by reason of such contumacy. 3. i. e. Fees formerly allowed by custom on all proceedings, up to the letters significatory, under seal, for apprehending the excommunicated party; and for the king's warrant; for enrolling the costs. Additional II. But, inasmuch as the deposit. judge cannot determine what expences have been III. Observe: the judge is necessarily made acquainted with the fact, whether a significavit has been directed to the king for the apprehension of the appellant, by the appellant's own motion before the court, containing such an allegation on his petition for a decree, that a letter or significavit be addressed to the king's majesty, for the liberation of the body of the said excommunicated person. same in the King's Bench; for a fee to the sheriff's officer; and for a fee to the attorney in the King's Bench. 4. To sum up the whole in a few words, for all the necessary expences of the plaintiff and his proctor, together with the accustomed fees for obtaining the letters significatory, and the royal warrant. 5. These expences the judge is accustomed to tax with reference to the distance of the habitation of the party (at whose instance the above proceedings were instituted) from the court, and according to the time, labour, and difficulty, as the case may be, of executing the same. 6. For example, though five shillings is considered to be the fee of the bailiff, yet, because sometimes the excommunicated person absconds, and keeps himself concealed, so that he cannot be apprehended; in consequence of which the bailiff has to labour long and assiduously, and incurs many expences before he can execute the warrant, the principal party (in whose behalf all this was done) is obliged to remunerate the said bailiff with twenty, or even sometimes forty shillings. 7. The same is the case if the excommunicated person, to avoid apprehension under the warrant, escapes from county to county, thus obliging the adverse party, however unwillingly, to obtain different warrants. 8. The judge, on due proof of these facts, adds such expences to the ordinary taxation of costs, and assigns them to be paid by the excommunicated party.-Oughton. Release of TITLE LXVII. SIGNIFICATORY LETTERS TOUCHING ABSOLUTION 1: I. THE proctor of the exthe party. communicated person, after he has exhibited his proxy for him, should make oath, "that he believes his client' will, for the time to come, obey the ecclesiastical laws, and yield to the mandates of the church, in all things Contumacy II. And further, such costs. proctor, seeking absolution the amount of the contu macy costs, as they are III. After which, the IV. The king's warrant for the release of the excommunicated person, is 1 See 9th Edw. II. ch. 7. and 5th Eliz. ch. 23, § 11.-Oughton. 3 1. I question, says Conset, whether or no, this ought not rather I refer myself to the experienced practitioners, and to the justices, 2. At the present day, the excommunicated person, to obtain the 4 See titles 65, and 66. also tit. 57, § 3.—Oughton. 5 See tit. 66, § 1. and observations thereon. See also § 5, 6, 7, 8. of this title.-Oughton. • This absolution must be made public in all cases where the ex taxation. Adverse proctor absent. Bond or pledge. Previous taxation. to be obtained and directed V. It must be further VI. Whereupon the 'judge, if he is satisfied that expences have been incurred by reason of the contumacy beyond those already taxed, should allot such costs to the petitioning party, and should compel the adverse party to pay them, notwithstanding his former taxation. VII. The reason of this second taxation of costs is, that the expences of contumacy vary according to circumstances, so that the party seeking absolution cannot tell what sums to deposit: nor the judge what sums to tax. VIII. For, although it is certain, that the party excommunicated is bound to pay two pence for every mile that the place of his usual residence is distant from the court of judicature, the defendant knew not how many writs the plaintiff had to obtain before his apprehension; nor what expences were incurred in, and connected communication had been denounced. Othobon, on public absolution, chap. Sicut Ecclesiasticæ. Absolution from excommunication, which had been for some contempt of jurisdiction, does not require clerical publication. See Lindwood on Penance, chap. Cum salubriter, verb. Clavibus.-Oughton. And Ayliffe's Parergon. art. Absolution, p. 19.-Ed. 1 Consult tit. 63, throughout.-Oughton. 2 Lindwood, ubi § Gloss. sup. verb. Possunt. sect. Si vero aliquis fit excom. pro contum. T. de don. Gloss. super verb. Abs. sect. sed nunq.-Conset, 2. 3. 3. § 3 3 As to this previous taxation, see § 2. of this title.-Oughton. |