Michaelmas Term. HERBERT v. with 1817. is not necessary to discuss: it is always considered respect to laws not of recent enactment, that the best interpretation is to be found in the practice; the practice has been constant; there is no HERBERT. precedent of a refusal ;-we are not aware of any caveat against the issue of an inhibition having been entered before this. The practice has been invariable that the signature of an advocate has been sufficient. The advocate may be mistaken ;but the question whether it is appealable is one of the incidents to be decided at the conclusion of the cause by the Court of Appeal. One objection taken on the other side is that the party has been pronounced in contempt, and is not entitled to be heard. Contumacy is of two kinds, actual and presumed. The one where the party before the Court refuses some order, the other where the party refuses or declines to appear. What is the legal effect of such contumacy? The Court proceeds in a regular and prescribed form; -it proceeds in his absence, not by excluding him if he offers to appear; but by calling him again to see proceedings with an intimation that if he does not appear, it will proceed without him; but then he is not to be excluded if he comes. Another objection is that the party has not been purged of his contempt;-according to the ancient practice, subsisting indeed till the late act, (b) where a person was pronounced contumacious, he was excommunicated ;-the legal disabilities of which were that no one could hold commerce with (b) 53 Geo. III. c. 127. 1817. Michaelmas Term. HERBERT 2. him; and when he came before the Court it was necessary that he should be absolved, having not otherwise a persona standi. Absolution applies to excommunication only. Contumacy is purged by appearance, and he is made subject to costs. In HERBERT. this case the party appeared under protest;-he was not excluded, but received; and the Court assigned him to extend his protest. The citation was extracted on the 11th of March, in a process viis et modis. It was served on the Royal Exchange treating the party as if abroad; from the 11th of March to the 4th of July is no extraordinary delay for a person abroad. He comes then to shew there is no jurisdiction, which would shew that there has been no contempt. It is asked whether there is any instance of an appeal brought by a party pronounced contumacious? There is a difficulty to commence a search for precedents, unless it should have been made a prominent point in the case. One kind of case is, when the complaint has been against the excommunication itself, as in Acherly v. Oldham, Deleg. 1811. (c) It is asked, Are there instances of an appeal from such a point as this? To this the answer is, that there can be no instance of an appeal because there is no instance of an order for an examination of witnesses de bene esse ;-in the Courts of Common Law no such proceeding is known ;-and in Courts of Equity, the examination of witnesses de bene esse as here granted of all witnesses to be produced, is, according to any search and enquiry we (c) Vol. I. p. 228. Michaelmas Term. HERBERT D. 1817. have been able to make unprecedented. These witnesses may be examined, if they are likely to die: but then if they live, they must be examined again. Affidavit also must be made of the age and infirmity HERBERT. of the witness in such a case.-It is a grievance to do any act while the jurisdiction is disputed. In the Admiralty Court witnesses are sometimes examined de bene esse :-but that is a Court of peculiar jurisdiction; and affidavits are always required that the parties so examined are going abroad. On this case also the jurisdiction is disputed by the protest, and it is a grievance to do any act whilst the jurisdiction is disputed.-We demand this appeal as a matter of right, not of form. Phillimore and Lushington for Lady Herbert. First, It is discretionary with the Court to grant or refuse the inhibition ;-this is to be inferred from the terms of the 97th canon, (e) which seems (e) 97th canon. Inhibitions not to be granted until the ap peal shall be exhibited to the judge. It is further ordered and decreed, that henceforward no inhibition be granted by occasion of any interlocutory decree, or in any cause of correction whatsoever, except under the form aforesaid and moreover that before the going out of any such inhibition, the appeal itself, or a copy thereof, (vouched by oath to be just and true) be exhibited to the judge, or his lawful surrogate, whereby he may be fully informed both of the quality of the crime and of the cause of the grievance, before granting forth of the said inhibition. And every appellant, or his lawful proctor, shall before the obtaining of any such inhibition, shew and exhibit to the judge, or his surro gate, in writing, a true copy of those acts, wherewith he complaineth himself to be aggrieved, and from which he appealeth; or shall take a corporal oath that he hath performed his 1817. Michaelmas Term. HERBERT to distinguish between an appeal from a definitive sentence, and from a grievance ;-and this is to be collected from the regulations laid down respecting the grant of inhibitions in the Canon Law, and the books of practice. X. 2. 28. 37. Ma- HERBERT. ranta 6. 207. lib. 1. (ƒ) Gail. Obs. 144. 4. 5. Ayliffe 297. (g) Gregorius Tractat. de Appella diligence and true endeavour for the obtaining of the same, and could not obtain it at the hands of the registrar in the country, or his deputy, tendering him his fee. And if any judge or registrar shall either procure or permit any inhibition to be sealed, so as is said, contrary to the form and limitation above specified, let him be suspended from the execution of his office, for the space of three months: if any proctor, or other person whatsoever, by his appointment, shall offend in any of the premises, either by making or sending out any inhibition, contrary to the tenor of the said premises, let him be removed from the exercise of his office for the space of a whole year, without hope of release or restoring. (ƒ) Secundùm regulam principalem non procedere quando fuit judici a quo inhibitum per superiorem: quia tunc non potest ulterius procedere in illâ causâ ; quod tamen intellige quando inhibitio fuit legitimè interposita, et cum causæ cognitione, et parte citatâ, nam quando est appellatum, in casu in quo non debuit appellari, vel quia causa est injusta, vel appellatio est frivola et frustatoria, tunc nunquam debet judex ad quem, inhibere, nisi priùs adhibeat causæ cognitionem super justitiam appellationis, aliàs inhibitio non valet. Marant. Spec. Aur. 6. act. 2. sec. 207. (g) In respect of an inhibition the judge ought to have a constat of the grievance, that he may know the truth thereof; for the causes of a grievance ought not only to be expressed in the instrument of the appeal, but also the truth of such griev. ance ought to be verified from the acts of the inferior judge, and from hence the judge ad quem ought to consider whether the cause be devolved or not: for as long as the cognizance continues before him, whether he ought to receive the appeal v. 1817. Michaelmas Term. HERBERT tionibus, lib. i. c. 10. lib. 2. c. 14. 2. Mandosius. de Inhibitionibus Qu. 25. Clarke 323. Though we have found no precedent for a caveat against an inhibition, yet it is so strictly analogous to the course HERBERT. in all ecclesiastical proceedings, and to the practice of all Courts regulated by the canon law, that it cannot be objectionable. v. Secondly, If it is discretionary, this is a case in which a Court would not grant an inhibition;these Courts are favourable to marriage. The danger of losing the evidence is obvious;-and the examination of witnesses de bene esse cannot be an appealable act. Maranta Spec. 6. 206. (h) Thirdly, The party is in contempt, and cannot appeal ;-his contumacy is not purged. Maranta 6. 14. Oughton 406. X. 2. tit. 28. 37. Gail. lib. 2. 14. 11. Mandosius de In. lib. 33. Arnold and Swabey in reply. The course of proceedings in these Courts in the absence of a party is not by examining witnesses de bene esse; but by taking a decree calling on him to see proceedings with intimation that otherwise the cause shall go on without him, and proceeding in it accordingly. Oughton 295. JUDGMENT. Sir JOHN NICHOLL. This question is of a very unusual sort ;-wheor not, and whether the cause be devolved or no, he ought not to inhibit the inferior judge. Ayliffe Parer. p. 297. (h) Judex à quo potest pendente appellatione examinare testes senes, vel valetudinarios ad perpetuam rei memoriam, et non dicitur innovare. Maranta Spec. Aur. 6. act. 2. 206. Verus contumax non appellat. Marant. Spec. Aur. p. 6. sec. 14. |