the appointed day, and if he does not appear at the time fixed in Not apthe citation, he is excommunicated', (decreed in contempt, &c.- pearing. Ed.)

IV. If the party thus cited appears, but alleges no sufficient Appearing. cause why he has not fully answered, he is not again to be bound by his oath to reply; but he must be admonished, and commanded to answer fully3 before the next court day, by virtue of the oath which he has already taken, under pain of a declaration of confession or he must be admonished to appear on the next court day to see himself declared and pronounced in confession.

TITLE XCVII.

A REFUSAL BY THE PRINCIPAL PARTY TO ANSWER FULLY,

OR THE NOT ANSWERING FULLY, IS REGARDED IN THE SAME LIGHT AS A

CONFESSION.

I. IF the principal party produced on any libel (or other Insufficient matter), and examined thereupon, has not answered fully, he answers. must be required and admonished, as in the preceding title, to return fuller answers.

II. And, if he fails so to do, he must finally be called upon to Personal appear personally on a particular day to answer fully. Or, if appearance. the judge pleases, he may make the above decree in the first instance, when the party is first summoned to answer, as above, by virtue of his oath previously taken.

1 Cockburn, p. 32, observes, the practice now is different. If the party does not appear, he is declared and pronounced as having confessed the libel. -Ed.

2 In some MSS. the word "requested," occurs. See tit. 97, § 4, where the words are," requested, ordered, and admonished." See also § 3. of the same title. And, further, turn to part 2. tit. 142, § 3, 4. and part 2. tit. 143, § 2.-Oughton.

3 i.e. To answer fully to such a position, or to such positions, as is explained above in § 1. of this title.-Oughton.

+ If this clause be in the citation, " to appear personally to answer more fully such and such articles, by virtue of the former oath taken by him on such a day," he may be admonished that very day, to answer such and such articles, under the penalty of being declared as having confessed them.-Cockburn, Clerk's Assistant, p. 33.

Monition.

Form of de

claration of

confession.

Specific declaration.

III. If the party appears thereupon, he is to be requested, ordered, and admonished, by the judge, at the petition of the party by whom fuller answers are required, to answer fully without delay, on pain of a declaration of confession'.

IV. If the party still does not give in his answers, the judge shall decree: "Because N., now present in court, having been requested, ordered, and admonished to answer fully (to such and such articles or positions,) has not taken care so to do, we pronounce him contumacious, and in pain of such his contumacy, at the petition of M., we declare the charges, to which he has failed to return a full answer, to be confessed 2.

V. It is, however, the safer course for the judge, not to pronounce generally for the confession, but to specify the article, or portion of article, to which the declaration applies. 3.

Oath.

TITLE XCVIII.

THE MODE OF PROCEEDING,

AS WELL AGAINST THE PRINCIPAL PARTY REFUSING TO TAKE AN OATH TO
ANSWER THE POSITIONS OF A LIBEL OR OTHER MATTER, AS ALSO AGAINST
HIS PROCTOR FOR REFUSING TO ANSWER.

4

I. IF the principal party refuses to bind himself on his oath to answer the positions of a libel, or other matter, which he is legally bound to answer; or if he alleges any frivolous excuses why he should not take the required oath; he is not in this case ment of the to be pronounced to have confessed the libel or matter, which principal

Punish

party.

1i. e. on pain of a declaration that such silence will be regarded in the light of a confession. See tit. 96, § 4. Quæ requiruntur, ut quis pro confesso pronuncietur, vel non, vid. Lanf. de Resp. n. t. 16. Also Alciat. de posit. sect. Pœna non respond. fol. 136.—Conset, 3. 3. 5.

2

Or ،، we declare him pro confesso," as one confessing or granting those

things, to which he refuses to answer fully. This is called a presumptive confession. Vid. Manual. Jur. de verb. Signif. verb. Confessio.-Conset,

3. 3. 5.

3 An ancient MS. proceeds thus: “ And it is to be noticed, that the expences incurred in and by reason of such fuller answers, are to be defrayed by the party who failed to answer fully; because the delay was occasioned by such party.”—Oughton.

4 Some MSS. read, "If the principal party, cited to answer the positions of a libel, or other charge, refuses," &c.-Oughton.

4

was the course pursued in a preceding article 1, even though the monition, enquiry, or order to take the oath, has been frequently2 repeated; but he must for his contumacy be excommunicated3, (decreed in contempt.-Ed.); denounced before the king in chancery. Letters significatory must issue against him, and he must be apprehended, and detained in prison, till he takes the required oath".

II. Thus, in plenary causes, the proctor who is assigned by Proctor's punishthe judge to give in his answer to a libel, if he refuses or delays ment. longer than is necessary, to answer and contest suit, whether negatively or affirmatively, must be admonished; and if upon that he still does not answer, he must be excommunicated': and not pronounced in confession.

10

on his own confession.

III. Because, such declaration 1o can have no place in the pro- Party guilty ceedings, at least, in causes of instance ", unless the party, or his proctor, has first been duly sworn to answer

12

IV. Though, on the other hand, the author has known cases of persons, accused of heresy, and refusing to answer articles objected against them, pronounced in confession.

V. Remark further, that the petitions and proceedings against

1 i. e. In tit. 96, § 4.

2 Three times repeated.

Also in tit. 97, § 4.-Oughton.

See part 2. tit. 141, § 2.—Oughton.

3 For the form of the petition of excommunication, consult tit. 57.Oughton. The practice is now altered.-Ed.

* For the manner of denouncing excommunication, see tit. 57, § 4. and tit. 58, throughout.-Oughton. Not so now.-Ed.

56 Letters significatory for the taking of the body, and the imprisonment of the excommunicated person, are treated of in titles 62, 63.-Oughton.

7 The party required to answer, and not answering, is excommunicated; (decreed in contempt), and the party sworn to answer, and not answering, is pronounced pro confesso, (guilty by confession).-Ancient MS. Oughton.

8 Or any other matter, or allegation, contained in the acts of court, or allegations in writing, after the oath taken by the adverse party that his positions are true.-MSS. Oughton.

9

According to the present practice, if the proctor admonished to answer the libel, and to contest suit, refuses, for the sake of protracting the litigation, he must be punished as a contumacious person, for not obeying the mandate of the judge, and must be suspended from the exercise of his office as proctor, during the judge's pleasure.-Oughton.

10 With respect to the declaration of confession, consult tit. 96, § 4, tit. 97, § 3, 4, 5, part 2. tit. 142, § 3, 4, 5, and part 2. tit. 143, § 2, 3.Oughton.

11 See tit. 89, § 5, 6.-Oughton.

125

And has not answered," as some MSS. add.-Oughton.

a proctor, sworn to answer the positions of a libel, or any other charge, and not taking care to do so, or not answering fully, are similar to those 1 described at the commencement of the preceding title 2.

TERM PROBATORY.

Term probatory.

What

proofs are.

How mani

fold.

TITLE XCIX.

WHAT THE TERM PROBATORY IS, AND TO WHOM IT
APPERTAINS 3.

4

I. A TERM probatory is said to be that time or delay which is given to the plaintiff, wherein he may prove what he pleads or sues for nor has the plaintiff the sole and absolute benefit of it; for the defendant may likewise make use of this term, if the plaintiff renounces it, as is shown afterwards.

II. A proof, in this sense of the word, is making the matter evident to the judge, so that he may be able to determine a controversy depending between two parties. In a large sense it signifies, a setting forth the matter before the judge. More strictly it signifies, that full proof which is made by witnesses and instruments 5.

III. Proofs are said to be twofold, in respect of the matter in controversy. One sort of proof has relation to the matters of

1 Against the principal party refusing.-Conset, 3. 2. 2, § 2.

2 These words follow in an ancient MS.: "And mark, that it is expedient for the proctor, in whose favour, or at whose petition, the adversary, or the adversary's proctor, was pronounced in confession, to accept such declaration, as far as it makes for his party."-Oughton.

3 This title is copied from Conset, 3. 4. 1. § 1, 2.—Ed.

4 Probatio autem non est in transcursu facienda, sed citata diversa parte ad ejus expeditionem, et termino justo ad id præstituto. Datur autem unus et idem terminus Actori et Reo, &c. Wesembecy de Prob. n. 8. in ff. Chilian. in Pract. c. 17, and Wesembecy, ubi s. t. de test. n. 5. lit. B. colum. 2.-Conset.

5 Mascardus de Proba. vol. 1. 94. Wesembecy in Paratit. ff. de Proba. et pres. n. 2.-Conset.

fact, the other has relation to the matters of law, which occur therein. And this sort of proof last mentioned ought to be made by the laws, customs, canons, &c., sometimes directly, sometimes by arguments 1.

most evident, which are such proofs as are made by

privileges, instruments of undoubted credit, &c.

differ.

V. Likewise those proofs which are made by witnesses may How proofs be said to differ in respect of the form of speech, in like manner as the answer of the defendant or principal party was said to vary. And these proofs are usually produced after the suit is contested, Time of and not before; that is, at any time before the term assigned for proof, called the term probatory, has expired. Alciatus * recites several cases, in which the proofs, (the witnesses at least) may be produced before the suit is contested.

4

their pro

duction.

1 Alciat. de Proba. fol. 140. Baldus in additione a Speculator. de Testibus. sect. Nunc vidend.-Conset.

2 De hisce prob. apud Lind. videas. t. de Jure jur. c. Presbyt. sect. quod si, verb. Probationes.-Conset.

Mascard. de Prob. vol. 1. Quæst. 4. n. 16. Ummins. disp. 15. th. 1. Alciat. ubi s. et in tract. præsumpt. in prin. par. 3. n. 2. Wesemb. in ff. de Prob. et pres. n. 4. ubi plene de his probation. divisionibus reperias. Speculator, tit. de Prob. sect. Videndum.-Conset.

4 Ubi s. de test. fol. 146. Wesemb. ff. ubi s. n. 9. and tit. de Testibus, n. 5. lit. A.-Conset.