The party alleging the same, must specify particularly in what the nullity consists. Appeal or complaint against a superior judge not allowed. TITLE CLVII. THE NULLITY OF THE SENTENCE, OR ACTS, OF A SUPERIOR I. APPEALS, or complaints by way of appeal, from a superior to an inferior judge, are not allowable. II. Nevertheless, if in any cause pending before an inferior judge, any sentence, or act, sped and done before a superior But nullity judge is objected against a party in order to weaken his cause, or to strengthen the argument on the other side; in that case the nullity of such sentence, or act, may be alleged. may be alleged. III. And if the nullity is proved, the inferior judge, although he cannot determine on such nullity directly, yet he may proceed to pronounce sentence, and to adjudicate in the cause before him, as if such null sentence, or null act, had never been exhibited. And thus, in fact, though incidentally, and tacitly, he decrees against such null sentence. EXECUTION OF SENTENCE. TITLE CLVIII. THE FORM OF THE PRAYER, THAT SENTENCE MAY BE No appeal I. If a party appealing judicially takes no pains to inhibit the prosecuted. judge from whom he appeals, within the term assigned to prosecute such appeal, and to certify; or if a party appealing extrajudicially does not take steps to effect the inhibition of such judge, within the statutable term of fifteen days from the delivery of the sentence, II. The proctor of the party who has obtained sentence in his favour, should address the judge, who has delivered such sentence, as follows: proctor's prayer. III. "I, N. exhibit my proxy afresh 'for M., and make myself Adverse 2 that L. (i. e. the party against a party for him, and request that L. (i. whom sentence has been given) may be decreed to be called on such a day, to show cause why the sentence, which has been pronounced against him, should not be ordered for execution, and the costs of the suit taxed. 3 IV. Then the judge says: "We so decree ;" and he appoints Decree. a day for the appearance of the party appealing, depending on the distance of his place of abode from the court. TITLE CLIX. THE FORM OF ORDERING SENTENCE FOR EXECUTION BY IF THE PARTY AGAINST WHOM THE SENTENCE WAS GIVEN APPEARS 4. I. IF the party against whom sentence has been pronounced, Execution of sentence. 1 The procuratorial mandate, exhibited at the commencement of a suit, ceases to have effect after the delivery of the sentence, unless it is exhibited afresh, after such sentence has been pronounced.-MS. Oughton. 2 A various reading in an old MS. is as follows: "And I allege, that fifteen days have elapsed from the time of the delivery of the sentence in this wherefore I request that L." &c.-Oughton. cause; 31. See more on this head in part 2. tit. 331, § 1, 2.-Oughton. 2. At present, however, the practice of applying for a citatory monition against an unsuccessful party, to show cause why sentence should not be ordered for execution, is of rare occurrence. But in some cases such an application appears to be necessary, in order speedily to elicit a fact, which might otherwise have remained longer doubtful, viz. whether an appeal will be prosecuted or not.-Oughton. Dr. Holman, of Doctors' Commons, in A.D. 1745, writes thus: "The practice of praying sentence to be put into execution has been long since out of use with us at the Commons, but you may, by our present practice, which wholly prevails, tax costs at the time of giving sentence, or at any time afterwards, before the cause is appealed." -Ed. * As to the form of ordering sentences for execution in the first instance, when the party against whom the sentence was given does not appear, see Prayer of the proctor of the suc cessful party. Answer. 1 does not appeal at the time of the delivery of the sentence, but appeals in writing, before a notary and witnesses, out of court; and being called upon to show cause why sentence should not be ordered for execution; appears, either personally, or by his proctor; the successful party should say, II. "I, N., in presence of the adverse party, (or his proctor, as the case may be) petition, that the sentence which has been delivered by the judge of this court, may be ordered for execution, and that the costs may be taxed "." III. Then the party appealing, if he intends to prosecute his appeal, should say, (as in the title ", " On the mode of proceeding in a cause of appeal,") "First protesting that I do not assent to the judge of this court, &c. I exhibit my proxy for L., and make myself a party for him; and allege, under such my protest, that the sentence delivered in this court should not be ordered for execution; because, and inasmuch as, the cause has been, and is, appealed, at a proper time, and in a fit place, on the part of my First term client, from the sentence of this court: and, because the term of appeal. called "primum fatale," is yet pending (i. e. a year has not elapsed from the day of the delivery of the sentence, or rather from the day of the interposition of the appeal)." part 2. tit. 331, § 1-9. and 13. To the same effect, in the second instance, i. e. when the cause has been appealed, see the same title, 331, § 10—12.— Oughton. See part 2. tit. 331, § 1, 2. and observations on tit. 158, note (3) 2.— Oughton. 21. It is usual to pray the court to condemn the unsuccessful party in the expences of the suit and to tax them, at the time of the delivery of the sentence. 2. Oftimes indeed condemnation and taxation are joined in the same sentence. 3. But if in the sentence, or at the time of delivering the same, the judge has only condemned the party in the expences, and has not taxed them, but has reserved that point, assigning to hear his will upon the said taxation of costs on another day; then, on that day, the court must be petitioned to tax the expences. In which case the taxation becomes part of the execution of the sentence. 4. As to the mode of petitioning for the taxation of expences, and the form of the said taxation, see part 2. tit. 331, § 3—6. 3 As to such protest, see part 2. tit. 308, § 3. Also, part 2, tit. 310, § 1. -Oughton. ♦ Fatale, tempus est a lege præstitutum, ad causas appellandas, apud judices instruendas et terminandas.-Du Cange, Gloss. Manuale, et Scoti Vocabularium. Voc. Fatalis. IV. Then, if the successful party believes that his unsuccessful adversary has appealed within the limited time, before a notary and witnesses, he should petition the judge to assign certain terms to prosecute the appeal, and to certify1. the term, V. On the lapse of which terms or days, (if the judge has not Lapse of been inhibited in the meantime), the party who obtained sentence, execution may, in presence of the proctor of the vanquished party, require of sentence sentence to be ordered for execution 2, without any other citation required. or monition to that effect. VI. Because the proctor of the unsuccessful party exhibited his proxy for such party after the delivery of the sentence, when he alleged that the cause had been appealed. Whereupon the judge is bound to order the sentence for execution. VII. But here it must be borne in mind, that if the unsuccessful Inhibition. party has appealed from the said sentence, at a fit time and place, and has obtained an order of inhibition, (for he who has obtained an inhibition is said to have prosecuted his cause), from the judge of appeal, within the term limited for that purpose: although he has not, either on the day assigned for prosecuting the appeal, or on the day given to certify the same, or on any previous day, certified the judge from whose court the cause is appealed, of such proceedings on his part. 3 tion of VIII. And although, after the lapse of the term allowed for Prosecuprosecuting the appeal and for certifying, the judge appealed against, in presence of the proctor of the party appealing, (or in appeal. 1 With respect to such terms, consult part 2. tit. 291, § 2, 3. and tit. 294, § 1, 2. and tit. 302, § 9-13.-Oughton. 2 1. In a cause of subtraction of legacies, tithes, pensions, procurations, rates, or sums taxed for the repair of churches, the party against whom sentence has been given, is admonished to pay to the other party the adjudicated sum or matter, together with the taxed costs, within fifteen, twenty, thirty, or more, or fewer days; after monition duly issued to that effect, under pain of the greater excommunication, to be forthwith (i. e. after the lapse of the said term of payment, the sum or matter taxed, together with the costs, not being paid) denounced against the said previously admonished party. 2. In a matrimonial cause, the unsuccessful party is in like manner admonished to solemnize marriage with the party who prevailed in the suit, on or before such a day; under pain of a similar punishment. 3. As to the form of ordering a sentence for execution in a defamation suit, see part 2. tit. 268. throughout.-Oughton. 3 As above, § 5.-Oughton. Ꮓ Dissent and protest. Exhibition of the instrument of appeal. Terms assigned to prosecute appeal. When sen 1 pain of the contumacy of the party, cited to shew cause why the said sentence should not be ordered for execution 2); has ordered the said sentence for execution; (whether in presence of the proctor alleging no cause, or in pain of the contumacious absence of the principal party *). 3 IX. Yet, notwithstanding this execution of the sentence by the judge appellate, the party appealing may prosecute his appeal: and, if it is just and well grounded, will prevail therein, without regard to this order for executing the sentence. X. The proctor of the appellant party, (or the principal party himself, if the above proceedings were in his presence), merely dissenting from all the acts sped and done by the appellate judge, and protesting against the same, as null. XI. As to the question, "whether the judge's ordering a sentence for execution prevents the appeal,"-there has been much discussion and litigation among the most learned advocates during the last twenty-six years; and the decision has been in favour of the appeal. XII. If the proctor, who has prevailed in the suit, believes that the adverse proctor has not appealed within fifteen days from the time of the delivery of the sentence, he may petition the judge to assign such adverse proctor to show, or prove, that the cause was duly appealed, on the next court day. XIII. Because this allegation may be proved by the mere exhibition of the public instrument of appeal before a notary public, and his reading the same. XIV. If then, within the term assigned to prove, the party shows that the cause was duly appealed; the judge, at the petition of the said appellant party, should assign him terms to prosecute such appeal, and to certify (as above) 5. XV. But if proof of the interposition of the appeal is not tence pro- established, the sentence is ordered for execution. ceeds to ex ecution. XVI. Remark here, that it sometimes happens, the cause is appealed by a proctor, in the first instance, who is in remote parts; or, it may be, the notary in whose presence the appeal took place, lives at a distance. 1 2 3 4 As to the clauses marked with these figures, and included within brackets, see the observations on tit. 158. note 3.-Oughton. 5 Section 4.-Oughton. 6 In an ancient MS. these words follow: "For the notary is obliged to |