Page images
PDF
EPUB

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
been put in proving the
allegation.

ther, the party unjustly ex

Deposit with the registrar.

TITLE LXVI.

IN WHAT CASES THE CONTUMACY COSTS MUST BE
DEPOSITED WITH THE REGISTRAR BEFORE ABSO-
LUTION.

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
registry of the contumacy
costs, subject to the taxation
of the judge. As to what
these costs are, read the
title "on the charges which
are called contumacy
charges 1."

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
incurred by the adverse
party, until such party has
appeared, the proctor, seek-
ing his client's absolution,
must leave a pledge, (be-
yond the sum deposited in
the registry), or promise on
his oath, to pay any other ex-
pences taxed by the judge;
supposing only that the ad-
verse party is able to prove
that more is due than the
sum previously allotted.

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:
AND THE WARRANT FOR THE RELEASE OF THE
PARTY.

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
lawful and honest."

Contumacy II. And further, such

costs.

proctor, seeking absolution
for his client, must, without
fail, pay to the adverse
party, or his proctor, if
either of them appears, if
not, he must deposit with
the registrar in his office,

the amount of the contu

macy costs, as they are
called, subject to the tax-Subject to
ation of the judge 3.

III. After which, the
judge absolves the excom-
municated person, and re-
stores him to communion
with the faithful; and, at the
petition of his proctor, de-
crees a letter to the king's
majesty for the liberation
of the body of the excom-
municated person out of
prison.

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.
2 Power was formerly given to proctors, of swearing in animam
domini, (to their client's belief,) in every case of a procuratorial
mandate. See the ancient forms.-Oughton.

3

1. I question, says Conset, whether or no, this ought not rather
to be done by the parties themselves, for the doing it by another
seems to be no more than a bare suggestion, against which the pro-
vincial constitution has inserted a caution. In this, Conset adds,

I refer myself to the experienced practitioners, and to the justices,
who are better able to explain the Provinc. Constitut. Lind. de
Immun. Ecc. c. Su. princ. sect. suggest. usq. ad fin. cap. Lanf. in
Prax. Alciat. de expens. fol. 192.-Conset, 2. 3. 3. § 3.

2. At the present day, the excommunicated person, to obtain the
benefit of absolution, must himself take the oath to obey the laws,
and yield to the mandate of the church, in all things lawful and
honest.-Oughton.

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
in the same way that the
previous warrant for appre-
hending the party had been
obtained and directed 1.

V. It must be further
noted, that whenever the
proctor of the plaintiff is
not present to exhibit a bill
of the costs of contumacy2,
and to petition that the
same may be taxed, at the
time of the defendant's seek-
ing absolution; in all such
cases the proctor of the de-
fendant, in addition to the
costs previously taxed by
the judge', and deposited in
the registry, should further
give bond, or bind himself
by an oath, to pay all other
expences incurred by rea-
son of the contumacy, to be
taxed by the said judge, in
case the adverse party can
shew, that more costs are
due to his client, by reason
of the contumacy, than had
been previously taxed.

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.

« PreviousContinue »