ecuting a commission for the examination of witnesses, if neither the adverse party, nor his proctor, nor any substitute for the said proctor, appears."

VI. But if the adverse party, or his proctor, appears, then, in Proctor case the scrutiny does not take place in the room where the records present. are deposited, the party applying for the scrutiny should say,

registrar.

VII. "I exhibit my original mandate, with a certificate at the Monition back of it, and I accuse the contumacy of M. N. O. who have against the been admonished, according to the tenor of the said mandate1, to exhibit on this day, at this place, the muniments mentioned in your letters of commission."

of instru

ments.

VIII. Then the registrar, or the keeper of the muniments, Exhibition says, "On behalf of N. (i. e. the judge, to whom the muniments belong), and myself, the registrar, or keeper of the registry wherein the required muniments are deposited, I exhibit, in compliance with the above monition, such and such writings, (or such and such instruments, or such and such a book), &c."

IX. The party who applied for the scrutiny, next says, " And I exhibit the same muniments, as far as they make for my party, and I petition, that they be carefully inspected, searched, and scrutinized, and that true copies be made of the same; and that the transcripts be faithfully collated with the originals; and after such collation, that the commission be closed, and returned to the judge who granted it, on the day, and at the place, stated therein, and according to the tenor thereof."

X. All the above steps should be taken, and the above decrees Certificate 3 of commispassed, by the commissioners, in presence of the adverse party 3, sioners. and of the notary public assumed and employed; and they should certify the same in like manner as the commission for the examination of witnesses is certified 1.

cious ab

XI. But observe 5, if the adverse party does not appear, either Contumaby himself or by his proctor, all the above steps are to be taken, and exhibits tendered, and decrees made, in pain of the con

1 See, thereupon, observations in tit. 134, note 1.-Oughton.

2 The Latin word is " collationari," which, as the author observes, is coined, and put for "conferri."-Ed.

3 Otherwise, in the presence of the proctor of the adverse party.Oughton.

4 With relation to the certificate of the execution of a commission for the examination of witnesses, as far as it applies to the certificate of a commission of scrutiny, consult tit. 117, § 1, 2, 3. 6. —Oughton.

5 Look back to § 5. of this title.-Oughton.

sence.

Scrutiny in registry.

Exhibition of muni

ments re

fused.

Contumaci

how dealt

with.

tumacy of such party', after he has been called by the crier of the court, and accused, and pronounced contumacious; in the same manner as in the title, "On the manner of proceeding after the acceptance of the task of executing the commission for the examination of witnesses, &c."

XII. If the above scrutiny is made in the registry itself, then the said commissioners, in presence of the adverse party, if he appears, or in pain of his contumacy, if he contumaciously absents himself, should cause the said registry to be searched for the muniments mentioned in the commission, in presence of the notary assumed, and they are bound to proceed, and to certify, as above.

XIII. In these cases we have supposed the registrar, or keeper of the muniments, for the better execution of the said scrutiny, willingly to exhibit to the commissioners the said muniments, or to show them the place in which they are deposited and preserved".

XIV. But here it may be asked, after what form and manner should the parties proceed, if the bishop, or his registrar, being admonished, as above, to exhibit the said muniments before the commissioners, do not appear, nor comply with and satisfy the monition?

XV. Can such parties be excommunicated (have their conous party, tempt certified to his majesty in chancery.-Ed.) by the commissioners on account of their contumacy? or, should a representation be made to the judge, (an authentic certificate' being addressed by such commissioners to the judge who granted the commission,) setting forth all they have done in the premises; so that the judge may thus proceed against such contumacious parties in a cause of contempt, and punish them with ecclesiastical censures?

XVI. This question has, for the last thirty years, been much discussed, and warmly controverted, among the most learned

1 Otherwise, in pain of the contumacy of the proctor.-Oughton.

2 See tit. 114, § 7-9. 16—20.-Oughton.

3 As above, § 5. 11.-Oughton.

4

§ 10. of this title.—Oughton.

5 An ancient MS. here adds, "that the commissioners may not have to

examine through the whole registry for the muniments, of which, by virtue of the commission, they are in search."-Oughton.

• § 7. of this title.-Oughton.

7 See tit. 117, § 1.-Oughton.

An ancient MS. has, "for the last thirty-five years."-Oughton.

advocates, but the author is not aware that any decision was ever come to upon it1.

XVII. But the most skilful proctors, men of the greatest experience, have been of opinion, that commissioners could not excommunicate a bishop, or his registrar, although such parties had been duly admonished, to exhibit the said muniments".

XVIII. Because, in the commission of scrutiny, there has not been given, or at least is not usually given, power, or words expressive of power, to the said commissioners, to excommunicate parties not exhibiting the said muniments.

XIX. To avoid this doubt and difficulty in future, the proctor

1 The reading of an ancient MS. is, "But how this question has been settled, the author cannot recollect."-Oughton.

66

2 In place of the words in this section (17) an ancient MS. has the following reading: 'This, however, the author knows, that a judge once asked some skilful and experienced proctors, what the practice was in former times? To which they answered, that the question was never agitated in their time. But they added, that in their opinion, with all due deference to the judgment of learned advocates, commissioners had not power to excommunicate a bishop and his registrar, although, after being duly admonished to exhibit the said muniments, they did not appear."-Oughton.

66

3 The wording of this section (18) in an ancient MS. is as follows: Because, in the commission of scrutiny, the judge granting the commission is not wont to give power to the commissioners of excommunicating parties who do not exhibit the said muniments.”—Oughton.

4 In commissions of this kind for a scrutiny, according to the style adopted in the present day, the following words are found: "To you, in whose fidelity and industry we place full reliance in this matter, &c., we commit our office and authority, by these presents, together with the power of employing, if necessary, all legal means of coercion.”—Oughton.

5 1. The various readings in this, and the following section, according to an ancient MS. in the author's possession, are as follows:

2. "To avoid this doubt and difficulty in future, the proctor applying for a scrutiny should take care, that the monition to exhibit muniments be decreed against a bishop, directing him to exhibit muniments before commissioners on the days, and at the place, stated in the commission; otherwise that the bishop do appear before the judge granting the commission, on some suitable day, after the lapse of the term assigned for the scrutiny, to show cause, why, on account of his contumacy (in cases where he has omitted to exhibit muniments before the commissioners) he should not be excommunicated."

3. And then, unless the bishop shall purge himself from his contumacy in a legal manner, on the return of the proceedings of the said scrutiny, with the above-mentioned monition, and an authentic certificate attached to it of

applying for a scrutiny, should take care that power be granted to commissioners in the said commission, of excommunicating parties, (of declaring such parties in contempt, &c.-Ed.) who have been admonished to exhibit muniments, and do not exhibit them.

XX. But this clause, or power, has not been introduced, or formed part of any commission, for many years past.

OATHS.

Oath.

TITLE CXXXVI.

WHAT THE OATH OF CALUMNY IS:

AND IN WHAT PART OF THE PROCEEDINGS IT MAY BE ADMINISTERED: AND
HOW MANY SORTS OF IT THERE ARE 1.

I. THE Oath of calumny is wont to be administered immediately after the suit is contested; or in any other part of the proceedings, if omitted then 2; and, in some cases, it is administered before the suit is contested.

ετυμον, οι

II. Whence the word calumnia seems to have its true signification, Wesembecy shows, in the first number of the chapter or title "de Jurejurando propter calumniam.”

III. This oath of calumny is defined to be, "that whereby the parties in a suit do protest in their conscience as to the prosecution of a cause, that they do it not out of fraud3 or vexation, &c., but out of a confidence they have in the justness of their cause."

the execution thereof, the said bishop is excommunicated (his contumacy is to be certified to his majesty in chancery.-Ed)

4. For the modern form, or wording, of this monition, see tit. 134, note 1. -Oughton.

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

2 Wesembecy, in ch. de Jur. Jurand. propter Calumn. n. 9. Alciatus de Juramento Calumn. sect. Quando Jur. Myns. Inst. tit. Pœna temere litigant. text. nunc ad mon. n. 8, 9. and in Rub. n. 5.-Conset.

3 Wesemb. et Alciat. ubi supra, et Myns. ubi supra in Rub. n. 5. et super text. eod. n. 82.-Conset.

IV. Of this oath of calumny there are two sorts, the one general, which is not taken oftener than once in the cause, and that immediately after the suit is contested, or, if omitted then, in any part of the proceedings afterwards; the other special, which is likewise called the oath of malice, and may be administered to either of the parties, as often as the judge sees fit', in any part of the proceedings, either before or after the suit is contested, and whether the general oath be taken or not 2.

1 Myns. Inst. tit. Prædict. sect. Eod. nunc admonendi, n. 10, 11. Gail, 1. obs. 87. Bachovius, ad Tr. v. 1. Speculator, de Jur. Calum. sect. 1. vers. sed pone. Wesemb. ubi s. n. 4.-Conset.

2 Burn (Eccl. Law, vol. iii. p. 6 and 7.) states, "Laymen were free by the custom of the realm from taking the oath of calumny, unless it were in causes matrimonial and testamentary. In those two cases the ecclesiastical judge might examine the parties upon their oath, because contracts of matrimony, and the estates of the dead, are many times secret, and do not concern the shame and infamy of the party, as adultery, incontinency, simony, heresy, and such like. And this appears by two writs in the registry, directed to the sheriff, to prohibit the ordinaries from calling laymen to that oath against their wills, except in these two cases. 2 Inst. 657. Gibs. 1011. This oath had long continuance in the ecclesiastical court, and it had the warrant of an act of parliament, (2 Hen. IV. ch. 15.) But this act was repealed by 25 Hen. VIII. ch. 24, and though revived in the reign of Queen Mary, it was finally repealed by 1 Eliz. ch. 1; so that the result of the matter is this: As far as the constitution of Otho (De Juramento Calumniæ, Athon. p. 60, 61.) was against the custom of the realm, it is of no avail. So far as it is warranted by the custom, it is still of force. Consequently, it extends to the clergy; and to laymen, in cases matrimonial and testamentary, and also to persons who take the said oath voluntarily, and not by compulsion." -Ed.