Forms of Ecclesiastical Law

13. The cause is then described, as, "the office of the judge against A. B." 14. The office of the judge is said to be promoted, when the accusation is brought, and the suit prosecuted, in the name of another.

17. They are plenary, when, strict regard being had to the rules, order, and solemnities of the ecclesiastical court, the suit is regularly contested; a proper interval is allowed to propound all acts; and a term is assigned to conclude 1.

18. Causes are summary, when, the parties proceeding briefly without such forms and solemnities of law, there is no contestation of suit, nor any term allowed to propound all acts, nor any term assigned to conclude.

19. The mode of proceeding in a plenary cause, brought at the instance of a party, is as follows:

20. In the first place, the citation is extracted; and executed; and the due execution thereof certified to the judge.

21. This certifying may either be by the oath of the party (i. e. of him who delivered the citation),

22. Or by his certificate in writing, authentically sealed, and duly delivered into court.

23. On the introduction of this certificate, the proctor for the plaintiff has first and before all things to exhibit his proxy, and make himself a party in the suit.

24. At the same time exhibiting the citatory mandate with the abovementioned certificate.

25. If the party cited does not appear, the proctor for the plaintiff prays that he may be called by the crier of the court.

26. And if, after being duly called, he still does not appear, he is accused of contumacy, and the plaintiff's proctor prays, that in pain of his contumacy he may be excommunicated 2.

27. But, if the defendant does appear personally, the proctor for the plaintiff, in his presence, exhibits a libel, and requires him to be admonished to answer thereto, and to appear in court (every session) till the definitive sentence inclusive, either by himself, or by his proctor lawfully appointed.

28. Remark, inclusive here means, till the definitive sentence has been pronounced by the judge.

29. If the libel is not ready for delivery, the defendant is admonished to appear to receive the libel on the next court day.

1 If there is the least infringement, or omission, in this order, the whole proceedings are annulled.-Cockburn, p. 6.

2 By the 53d Geo. 3. cap. 127. the punishment of contumacy is now imprisonment, and not excommunication.-Ed.

30. In case the defendant employs a proctor in the suit, that proctor may, and should be constrained by the plaintiff's proctor, forthwith to exhibit his proxy.

31. After the defendant's proctor has so exhibited his proxy, and made himself a party in the suit, (without which exhibition of proxies on both sides, the proctors severally making themselves parties in the suit, each for his own client, the proceedings are irregular and null,) the proctor for the plaintiff gives in his libel, and requires an answer thereto.

32. The answer brings the parties to what is termed, contestation of suit: without which the suit cannot proceed in a plenary cause; as has been stated above.

33. Suit being contested, the proctor for the plaintiff prays a decree for the principal party; repeats his libel; and prays that it may be repeated by the judge, in force of positions and articles 1.

34. Or, if he does not make such petition, the adverse party constrains him to ask for a term probatory.

35. A term probatory being assigned, it is competent for the proctor of the plaintiff, within that period, to produce witnesses, and have them examined.

36. Which may be done, either by producing them personally in court, or by praying a commission, directed to those parts where they live, for their examination before commissioners.

37. The principal party (regularly) should be produced within the term probatory above-mentioned.

38. But instruments may be produced at any time before the conclusion, nay, even after the conclusion, if such documents have been recently discovered.

39. If witnesses are produced personally in court, or elsewhere before commissioners, the proctor of the plaintiff should be careful to have the proctor of the adverse party present: or if such production of witnesses is in the absence of the defendant's proctor, it should be in pain of his contumacy: otherwise the production of witnesses, and the proof by witnesses, are ipso facto null.

40. Witnesses being produced, and sworn, and examined, the proctor of the plaintiff prays publication of their depositions. This he does in presence of the adverse party, or his proctor: or in pain of their contumacy, if absent. The publication would otherwise be void.

41. The form of praying publication is, " 'saving the examination of the

1 Arthur Browne, in his Compendious View of the Ecclesiastical Law, observes, (vol. ii. p. 103. ed. 1799.) "The promovent's proctor, on putting in the libel, prays the impugnant's proctor's answer, who then prays a time to be assigned him to prepare an answer, which, in the common course, is the next court day, but may be enlarged at the discretion of the judge. The promovent's proctor also says, or rather is supposed to say, that he repeats the libel, and prays that it may be repeated in vim positionum et articulorum." In another place he observes, "In ancient times, besides the libel, there were put in, after contestation of suit, positions and articles. These are all now comprehended in the libel. The positions were intended to be answered by the adversary, the articles to be proved, and what was posited could not be controverted, qui ponit, fatetur, but neither of them were in an interrogatory form, any more than is any part of the libel in the spiritual court."-Ed.

witnesses produced 1:” or, “saving the repetition of the witnesses elsewhere examined."

42. When the plaintiff's proctor considers that his client's interest is sufficiently established, in a plenary cause, he prays a term to be assigned him to propound all acts.

43. But in a summary cause he prays a term to be assigned to hear sentence on the first assignation.

44. This prayer may be made, and in fact usually is made, saving the examination of the principal party, wherever he has not already been examined. 45. At this stage of the proceedings, when a term has been assigned to the plaintiff's proctor to propound all acts, in a plenary suit, and to hear sentence on the first assignation, in a summary suit, the proctor of the defendant must make exceptions against the witnesses of the adverse party, or state his defence, whatever it may be otherwise, his opportunity of doing so is finally lost, as far as regards this suit because, if no counter petition is made on this court day, the conclusion of the cause is forthwith tacitly induced.

46. But, if the defendant's proctor does then tender exceptions against his adversary's witnesses, or proposes any other defensive matter, similar facilities are allowed him to bring forward his proofs, as had been conceded to the other party, and the like mode of proceeding is to be observed.

47. For the defendant, in making any propositions which he may wish to advance, so far becomes plaintiff.

48. On the same principle, and by a similar process, further time is allowed to the plaintiff to bring in his replication, and again to the defendant for his duplication.

49. When the proofs on both sides are complete, and also the publication of proofs, the court proceeds to the conclusion, in a plenary cause, by decreeing a term to propound all acts.

50. And on that term, or day, all acts enacted, and all instruments are exhibited by the proctors on both sides, or by him who entertains the most confident hopes of his cause: and a term is applied for to conclude.

51. On the day thus appointed the parties conclude with the judge concluding. And a term is prayed for, and assigned, to hear sentence.

52. When the appointed day for delivering the judgment of the court arrives, the proctor says, "I proffer to the judge the form of a sentence, which I pray to be promulged."

53. At the same time, the proctor of the adverse party makes a similar request or otherwise, merely says, "I pray justice."

The Author has only further to notice, that he has sedulously laboured, throughout this work, to the best of his poor ability, to give a correct account of the rules to be observed in our Consistory Courts, according to the method just described, which appears to him the most useful, and most appropriate which could be devised. And as far as he was able, he has accurately arranged the subjects agreeably to the established forms of ecclesiastical proceedings, and in the order marked out in the following analytical summary.

1 That is, the witnesses produced having been first examined, or without prejudice to such examination.-Ed.

Excommunication

Sentence of excommunication.

Denunciation

The excommunicated person obdurate.
The excommunicated person perjured.
Participators in the excommunication.
Apprehension of the party excommunicated.

Deposit of money with the registrar.
Absolution Liberation of the party imprisoned.
Proxy in a suit.

Assignation of advocates and proctors.

Appointment of a proctor Substitution of a proctor.

Proctor discharged of his office.

In what cases he is not discharged.