of a confession; the more especially, as the same defendant, swearing himself innocent (as the fact might be) of the offence imputed to him, could hope to obtain but little credence, and expect to derive but little benefit. -(By Sir John Nicholl, in Schultes v. Hodgson. Add. R. i. p. 110, &c.)

X.-DECREES IN RESPECT of.

1. For fuller Answers.

Further answers decreed after publication, and when the cause stood for hearing on the second assignation, because as the cause stood si non, the adverse party might have pleaded on that day, and consequently the cause was open to all purposes. (Smith v. Smithson. Lee's R. ii. p. 505.)

2. To what period of the Cause they may be enforced.

An assignation for fuller answers decreed after publication.-(Smith v. Smithson. Lee's R. ii. p. 505.-Heath v. Heath. Lee's R. ii. p. 562.)

3. Service of. Strictness of.

Whatever is to be done, personally, by the party principal in the cause, requires in strictness a personal service of the notice or decree for doing it, upon the party principal. Hence the service of a decree for answers upon the Proctor, will not justify the Court in putting the principal in contempt, if those answers are not brought in.—(Durant v. Durant. Add. R. i. p. 114.)

4. Effect of discontinuing the Certificate of. When a certificate to a decree for answers has been discontinued, it is still competent to the Proctor having discontinued it, to object to answers.-(Raymond v. Baron de Watteville. Lee's R. ii. p. 495.)

XI. WHERE PARTY MAY BE PRONOUNCED CONTUMACIOUS FOR NOT GIVING IN, ET CONTRA.

A party cannot be pronounced in contempt at the same time that his answers are held to be insufficient.--(Morgan v. Hopkins. Phill. R. ii. p. 582.)

The service of a decree for answers upon the Proctor will not justify the Court in putting the principal in contempt, if those answers are not brought in.-(Durant v. Durant. Add. R. i. p. 114.)

A party not giving in his answers on the day of the return of the decree, personally served, will be pronounced contumacious. (Wyllie v. Mott and French. Hagg. R. i. p. 33, et notis.)

XII.-REFORMATION OF.

1. For Redundancy. Answers objected to and reformed.-(Jehen v. Jehen. Lee's R. i. p. 273.-Lady Mayo v. Brown. Lee's R. i. p. 570.)

2. In respect of abusive Matter pleaded in. (Raymond v. Baron de Watteville. Lee's R. ii. p. 499.)

From the old practice, as laid down by Oughton, Clerk, and Conset, it is to be collected that personal answers were two-fold; being to be had, in certain causes, on special application, from the Proctor in the cause, as well as from the principal. This is distinctly laid down by Oughton: for instance, in the 16th sec. of his 61st title, "De litis contestatione," and in the subsequent section, (sec. 17 of the same title,) the suits in special, where the Proctor's answers may be had, are pointed out, and the uses to which they are capable of being made subservient in those suits are ascertained. Now this being so, I apprehend that notices or decrees for personal answers were always served accordingly that is, notices for such answers from the Proctor upon the Proctor-and decrees for such answers from the party upon the party.

It is true, indeed, that Oughton in his 62d title, refers to a note on title 21, (obs. 9,) by which it seems, that a decree for answers of the party principal in the cause may be served on his Proctor. But this can only be, he observes, under the special authority of the Court, in virtue of a special clause inserted in the decree itself; and, consequently, it forms no exception to the rule, that, in ordinary cases, the decree for personal answers of the party principal must be personally served upon the party principal. Oughton's whole 62d title represents, under ordinary circumstances, the decree for the personal answers of the party principal, as a formal process, under seal of the Court, against the party principal, and required to be served personally upon the party, as contradistinguished from any mere assignation or notice to be served upon the Proctor. And this, I conceive, to have been invariably the old practice, except as excepted in the 9th obs. on Oughton's 21st title; an exception, not at all applicable in ordinary instances.

So stood the old practice; a practice, I must also remark, both perfectly reasonable in itself, and perfectly consonant with the practice of the Court in analogous cases. For the reasonableness of the practice is too obvious to be insisted upon; and for its consonance with analogy, we all know, that whatever is to be done, personally, by the party, absolutely requires, in strictness, a personal service of the notice or decree for doing it upon the party. Where steps are to be taken by the Proctor merely, a mere assignation upon the Proctor suffices-he quoad hoc, being "dominus litis." But where the personal intervention of the principal is

requisite to the act to be done-as it is, for instance, where costs are taxed against him, or where sums are decreed to be paid by him on account of alimony-the practice is to take out a monition against the party, not merely to serve a notice on the Proctor; which monition must be personally served upon the party, in all cases, that is, when it is requisite that proceedings should be conducted with any semblance of regularity.

It must be conceded, however, in this matter of personal answers, that the modern practice has been to serve the decree on the Proctor only, and not on the principal. This may have arisen, partly perhaps from the two species of personal answers already alluded to (the latter, for obvious reasons, now obsolete) being confounded in modern practice; and partly because persons seldom hang back in this matter of answers, which are to be obtained, in most cases, without any sort of difficulty. Being the practice, however, I should be disposed to admit, that a service of the decree for answers, though merely upon the Proctor, might be sufficient service of the decree for many purposes. For instance, if after such service, the party's answer to an allegation of faculties were not brought in within a fit and reasonable time, it might justify the Court in allotting sums on account of alimony (the marriage, that is, being proved, or confessed) in proportion to the full extent of the faculties alleged, and so on. But it is a very different question, whether such a service would justify the Court in putting the party in contempt, and proceeding to signify him, in order to his imprisonment under the statute; a measure, which I conceive, the Ecclesiastical Court to be only warranted in adopting, where the prior proceedings have been conducted with the strictest regularity.

Nor would it vary the case, in this view of it, to my apprehension, that notice of the decree should have been served on the principal, or that the Proctor should have appeared to the decree, and prayed further time and so forth. Such being the old practice, and being so, as it is, consonant both to reason and analogy, it remains only to inquire whether it has undergone any authoritative alteration in later times. do I conceive that the inquiry can be attended with any sort of difficulty. Is there any adjudged case producible, where this Court has proceeded to enforce decrees of this

Nor

nature by its compulsory process, in the absence of personal service? I am confident there are none. Can it even be shewn that such decrees have been so enforced, unless, after a personal service, the whole matter passing sub silentio? I am nearly as confident that this has not occurred; for the Court is always (or means to be) satisfied that there has been a personal service, before issuing its compulsory process in this description of cases. The result, therefore, of the whole inquiry, which is almost too obvious to be stated in terms, is that the old practice in this matter of personal answers, being both perfectly reasonable, and perfectly analogous to the correct practice in similar cases, should and must, in all cases stricti juris, be the practice of the Ecclesiastical Courts at this very day.—(By Sir John Nicholl, in Durant v. Durant. Add. R. i. p. 118, &c.)

"Personal answers are not confined to being mere echoes of the plea, accompanied with simple affirmances or denials; but the respondents are further at liberty to enter into all such matter as may be fairly deemed not more than sufficient to place the transactions as to which their answers are taken, in what they insist to be, the true and proper light. -(Oliver and Tuke v. Heathcote. Add. R. ii. p. 35.)

I.-WHERE IT WILL GIVE JURISDICTION. If a party cited as within the jurisdiction of an Ecclesiastical Court, though actually resident within an other jurisdiction, appear and submit to the suit, such original defendant (a fortiori one cited to see proceedings, by such original defendant) is bound to the jurisdiction.-(Chichester v. the Marquess and Marchioness of Donegal. Add. R. i. p. 5.)

It is certainly true, that both the Canon (vide Gib. Cod. 1004-8,) and the Statute Law, (23 Hen. 8, c. 9,) forbid the citing of parties out of their dioceses, or peculiar jurisdictions. But it is equally true, that the rule, at least in the Statute Law, (vide Preamble of 23 Hen. 8, c. 9,) was meant for the benefit of the subject; which benefit it hath uniformly, as far as I see, been held to provide for sufficiently, by giving defendants, who are so cited, a privilege of pleading to

the jurisdiction. Consequently, if a party, who is so cited, once wave that privilege, by appearing, and submitting to the suit, he or she is bound to the jurisdiction. (By Sir John Nicholl, in Chichester v. Donegal. Add. R. i. p. 17, &c.)

II.-EFFECT of, to give VALIDITY TO THE
PROCEEDINGS.

Appearance waves any objection so far as respects the formality of the proceedings.— (Prankard v. Deacle. Hagg. R. i. p. 185.) III.-UNDER PROTEST.

(Herbert v. Herbert. Hagg. C. R. ii. p. 263, &c.)

IV. WHERE the Court wWILL REQUIRE.

When there is no party before the Court, who has an interest in supporting a testamentary paper, propounded, the Court will require the appearance of such a party.— (Redmill v. Redmill. Phill. R. iii. p. 410.)

III.-PARTICULARITY OF. (Hon. Robert Herbert v. Hellier. Lee's R. i. p. 539.)

IV. GROUNDS of.

Refusal of a citation in a libel of heresy. -(Pelling v. Whiston. Lee's R. ii. p. 317, in note.)

Grant of an inhibition not to intermeddle with deceased's effects pending suit, without proof or even a suggestion that the party had embezzled any of the effects; and notwithstanding that she, as widow, would be entitled to a moiety of the estate under an intestacy. (Lloyd v. Lloyd. Lee's R. ii. p. 523.)

The examination of witnesses, vivâ voce, in the Ecclesiastical Courts.-(Jones v. Yarnold. Lee's R. ii. p. 568.)

1. For Grievance.

(a) What Act not appealable.

66

The Judge's refusing to accede to a prayer for rescinding an order is not an appealable grievance, any more than is his refusing to permit witnesses to be examined on the days assigned to propound all facts," even though such witnesses are actually in Court, and are sworn to be necessary witnesses.(Greg. v. Greg. Add. R. ii. p. 276.)

(b) On what Acts to be heard.

A grievance must be heard from the acts in the Court below.-(Franshaw v. Verdon. Lee's R. i. p. 625.)

2. From definitive Sentence.

(Dearle v. Southwell. Lee's R. ii. p. 119.)

V.-MATTERS PLEADABLE.

On appeals from definitive sentences, matter which could have been pleaded below, and which directly contradicts the plea on which witnesses have been examined below, is not admissible; but matter more generally responsive may with caution be received, especially where the cause has not been properly conducted in the Court below.-(In note to Price v. Clark and Pugh. Hagg. R. iii. p. 265.)

On an appeal from a definitive sentence, the Court rejected an allegation, pleading facts not shown to be noviter ad notitiam perventa. (Fletcher v. Le Breton. Hagg. R. iii. p. 365.)

VI. SECURITY REQUISITE.

Security given in the Court of Admiralty cannot be made available in the Court of Appeal. That court requires fresh security and a new proxy.-(Sheffield v. Ball and others. Lee's R. ii. p. 291.)

VII. INHIBITION, service of.
What Acts may be done before.

I take it that in appeals, at least for grievances, the hands of the Court are in no case tied up till the service of the inhibition; and

that what, or whether any, intermediate steps shall be taken, depends upon the particular circumstances of the case, the Judge of the Court exercising, in that respect, a sound legal discretion.-(By Sir John Nicholl, in Chichester v. Donegal. Add. R. i. p. 21.)

The Court is not legally bound to defer to an appeal till an inhibition is served; nor is there any distinction whether all the acts be done on the day the appeal is asserted, or some on a subsequent day; therefore the Court, having overruled the objections to the admission of an allegation, on the following Court day admitted the allegation, notwithstanding an appeal had, in the interim, been asserted.-(In note to Middleton v. Middleton. Hagg. R. ii. p. 138. Supplement.)

VIII. PROCess return of, upon.

Though an affirmative issue to a libel of appeal from a definitive sentence be given, the process must be transmitted, where the Court of Appeal has to take any step requiring a knowledge of the proceedings, or of the sentence of the Court below.-(Courtail v. Homfray. Hagg. R. ii. p. 3.)

IX.-HOW Perempted.

Lapse of time, or acquiescence in the sentence appealed from, perempts all right of appeal. (Schultes v. Hodgson. Add. R. i. p. 105.)

Praying a Judge to rescind any order perempts any after appeal from that order.(Greg. v. Greg. Add. R. ii. p. 276.)

If a party does acts in furtherance of a sentence, he bars his right of appeal, viz. attending taxation of costs.-(Lloyd and Clarke v. Poole. Hagg. R. iii. p. 482.) X.-FROM PRONOUNCING PARTY CONTUMACIOUS. Certificate of the Contempt.

The Judge a quo is not justified in proceeding to certify the contempt; but the Superior Court cannot interpose till the inhibition is returned.-(Hamerton v. Hamerton. Hagg. R. i. p. 24. Notis.)

XI. TO WHAT PERIOD THE INFERIOR COURT IS NOT BOUND TO DEFER TO.

The Court is not legally bound to defer to an appeal till an inhibition is served.— (Middleton v. Middleton. Hagg. R. ii. p. 138. Notis.)

XII.-EFFEct of.

The appeal suspends the sentence, but the suit still continues.-(By Sir John Nicholl, in Loveden v. Loveden. Phill. R. i. p. 208.)

An appeal only suspends the sentence appealed from-does not render it a nullity.— (Blyth v. Blyth. Add. R. i. p. 312.)

XIII.-WHAT MAY BE INCLUDED IN THE
PRÆSERTIM OF.

All the several acts done on one Court day, make up but one decree,—at least so as to

warrant the appellant's including the whole (whether of an appealable nature or not) in the præsertim of the appeal.-(Greg. v. Greg. Add. R. ii. p. 284.)

XIV. TO WHAT COURT. 1. The Judge.

Though, in ordinary practice, no question is made on granting an inhibition, still I am of opinion that the Judge must exercise his judgment on the point, and decide whether there is sufficient ground to issue his inhibition.-(By Sir John Nicholl in Herbert v. Herbert. Phill. R. ii. p. 444, &c.)

2. From Bishop's Commissary. "Letters of request" from a Bishop's Commissary go in the same course with the appeal," that is, not to the Diocesan, but to the Metropolitan Court-the Court of Arches. (Burgoyne v. Free. Add. R. ii. p. 465.)

3. Where the Judge of the Subordinate and Diocesan Courts is the same person.

We very well know that appeals do not lie from one co-ordinate to an other, but from a subordinate to a superior authority.-(By Sir John Nicholl, in Parham v. Templar. Phill. R. iii. p. 244.)

Though the regular appeal from a jurisdiction not peculiar but subordinate is to the Diocesan, yet if the Judge of the Subordinate and Diocesan Courts be the same person, the appeal may be per saltum to the Metropolitan; but the reason must appear by the formal instruments in the case.(Beare and Biles v. Jacob. Hagg. R. ii. p. 257-522.)

4. From Deans and Chapters.

(a) Generally.

It has been said that generally the appeal lies from the Dean and Chapter to the Court of Arches. Having searched into the law authorities with considerable diligence, I find nothing to establish a different principle. (By Sir John Nicholl, in Parham v. Templar. Phill. R. iii. p. 244, &c.)

(b) Of Exeter.

An appeal from the Dean and Chapter of Exeter cites to the Court of Arches, and not to the Consistory Court of Exeter.(Parham v. Templar. Phill. R. iii. p. 223.)

5. From the Royal Peculiars.

To the Court of Delegates.-(By Sir John Nicholl, in Parham v. Templar. Phill. R. iii. p. 245-6.-Millar v. Bloomfield and Slade. Add. R. i. p. 499.)

6. From Peculiars.

I am of opinion that, by the general law, the appeal from a Peculiar, and more especially from the Peculiar of a Dean and Chapter, having exclusive jurisdiction to hear and determine all causes, without any

concurrent jurisdiction whatever, and being exempt from the visitation of the diocesan, lies to the Court of the Archbishop.-(By Sir John Nicholl, in Parham v. Templar. Phill. R. iii. p. 255.)

7. How regulated by Stat. 24 Hen. 8, c. 12. Appeals, in some instances, are regulated by statute, thus:-The Statute 24 Hen. 8, c. 12, is principally for the purpose of preventing appeals from being carried to Rome. It enacts, that, in all cases Ecclesiastical, the final decision shall be of the King's authority; that the first appeal (if it began in this Court) in every such cause shall lie from the sentence" of the Archdeacon to his Diocesan, from his Diocesan to the Archbishop of the province, and from the Archbishop to the King." This statute says nothing of exempt jurisdictions, to which even the Act of the succeeding year (25 ́Hen. 8, c. 19) applies only in one respect. This statute, therefore, applies only to those Peculiars, which had before been wholly exempt from the jurisdiction both of the Diocesans and the Archbishop, and which appealed only to the See of Rome; these were now directed to carry such appeals before the King. statute regulating appeals from Archdeacons, does not appear to me to regulate any appeals from Deans and Chapters: for a Dean and Chapter are of a higher rank than an Archdeacon. If Deans and Chapters had been comprehended in the 24 Hen. 8, the appeals must have been in all cases to the Diocesan. But we know the fact to be otherwise. seems to me, therefore, that the jurisdiction of Deans and Chapters is not necessarily comprehended in this statute.-(By Sir John Nicholl, in Parham v. Templar. Phill. R. iii. p. 241, &c.)

XV.-COURt of.

The

It

1. Power of to enforce Costs of Court below. Court of Appeal on an appeal from a grievance, cannot enforce the payment of costs incurred in the inferior Court.-(Brisco v. Brisco. Phill. R. iii. p. 38.)

2. Its object.

It was always laid down by my predecessor, that this Court should endeavour, in the best way it could, to get at the substantial justice of the case, and not allow either party to be injured by the irregularities of the inferior jurisdiction.-(By Sir John Nicholl, in Burnell v. Jenkins. Phill. R. ii. p. 394.)

The Court of Appeal must endeavour to put parties in the situation, in which they would have been, if the Court below had done right. (By Sir John Nicholl, in Burnell v. Jenkins. Phill. R. ii. p. 400.)

In considering the proceedings of the inferior Courts, this Court endeavours to look to the justice of the case, and is not strict as to the proceedings.-(By Sir John Nicholl, in Morgan v. Hopkins. Phill. R. ii. p. 583.)