mace capiendo peer, &c. obedience to any such lawful order or decree, or when any such thereupon a person or persons shall commit a contempt in the face of such writ de contucourt, or any other contempt towards such court, or the process shall issue, thereof, it shall be lawful for the judge or judges out of whose unless the court the citation or process hath already issued or may hereafter person be a issue, or whose lawful orders or decrees have not or shall not have been obeyed, or before whom such contempt in the face of the court shall be committed, or by whose order or authority such process in respect of or towards which any such contempt shall have been committed has been or shall be awarded or issued, or the successor or successors in office of such judge or judges respectively, to pronounce such person or persons contumacious and in contempt, and within ten days after such person or persons shall have been so pronounced to be contumacious and in contempt to signify the same to the lord chancellor, lord keeper, or lords commissioners for the custody of the great seal of England for the time being respectively, whenever the person or persons who shall have been so pronounced contumacious and in contempt shall be domiciled or residing in England, and within the like period of ten days to signify the same to the lord chancellor, lord keeper or lords commissioners for the custody of the great seal of Ireland for the time being respectively, whenever the person or persons who shall have been so pronounced contumacious and in contempt shall be domiciled or residing in Ireland, in the form annexed to" 53 Geo. 3, c. 127; "and thereupon, and in case the person so reputed to be in contempt shall not be a peer, lord of parliament, or member of the house of commons, a writ de contumace capiendo shall issue from his majesty's said High Court of Chancery in England or in Ireland, as the case may happen, to be directed to the same persons to whom writs de excommunicato capiendo were by law returnable before the passing of the said act of parliament, and the same shall be returnable in like manner as the writ de excommunicato capiendo had been theretofore by law. returnable, and shall have the same force and effect as the lastmentioned writ; and all rules and regulations not altered by All regulathe said act" 53 Geo. 3, c. 127, "and which before the passing tions and of the same act applied to the said writ de excommunicato provisions capiendo, and the proceedings following thereupon, and the writ de particularly the several provisions contained in" 5 Eliz. excommunic. 23, "shall extend and be applied to the said writ de cato, and proceedings contumace capiendo, and the proceedings following thereupon, thereupon, as if the same were herein particularly repeated and enacted; shall be and the proper officers of the said two several High Courts writ de contuof Chancery in England and Ireland, as the case may mace. happen to be, are hereby authorized and required to issue such writ de contumace capiendo accordingly; and all sheriffs, gaolers, and other officers in England and in Ireland, as the case may happen to be, are hereby required and authorized to execute the same, by taking and detaining the body of the person or persons applying to applied to the Upon the apsubmission of the party, the judge may order him to be absolved or discharged. pearance or Where persons possessed of estates, &c. in lect to pay money ordered by the said courts, the same to the Lord Chan cellor, who shall cause process of se questration to issue against the estate of the party in England. against whom the said writ shall be so directed to be executed; and upon the due appearance of the party or parties so cited and not having obeyed as aforesaid, or the due submission of the party or parties so having committed a contempt in the face of the court, or otherwise, as hereinbefore is mentioned, the judge or judges of such ecclesiastical court . . .. as the case may be, shall pronounce such party or parties absolved from the contumacy and contempt aforesaid, and shall forthwith make an order upon the sheriff, gaoler, or other officer in whose custody he, she, or they shall be, in the form to" 53 Geo. 3, c. 127, "annexed, for discharging such party or parties out of custody; and such sheriff, gaoler, and other officer shall, on the said order being shown to him, so soon as such party or parties shall have discharged the costs lawfully incurred by reason of such custody and contempt, forthwith discharge him, her, or them." Sect. 2. In all such cases as are hereinbefore mentioned, and which are or may be cognizable in any or either of the several herein before mentioned courts, when any person or persons, as England neg- well such person or persons as have or shall hereafter have privilege of peerage, or are or shall hereafter be lords of parliament or members of the House of Commons, as others who shall happen to be domiciled or residing either in England or in Ireland, judges may have been or shall have been ordered or required, by the lawful pronounce such persons order or decree, final or interlocutory, of any such court respeccontumacious, tively, to pay any sum or sums of money, and when any such and certify the person or persons, after having been duly monished, shall refuse or neglect to comply with such monition, and to pay the sum or sums of money therein ordered to be paid by him or them, within the time and in the manner in any such order or decree mentioned or expressed, or a peer or lord of parliament or member of the House of Commons shall refuse or withhold obedience, or shall in any way neglect to perform or shall not perform any decree or order, final or interlocutory, of such courts as aforesaid, it shall be lawful for the judge or judges who shall have made such order or decree, or his or their successor or successors in office, to pronounce the person or persons so neglecting or refusing to comply with such order or decree contumacious and in contempt, and within ten days after such person or persons shall have been so pronounced contumacious and in contempt to cause a copy of such order or decree, under the seal of the court wherein the same shall have been made, or under the hand or hands of such judge or judges, or one of them, to be exemplified, and certified to the lord chancellor, lord keeper, or lords commissioners for the custody of the great seal of England for the time being respectively, whenever the person or persons who shall have been so pronounced contumacious shall be domiciled or residing, or shall be seised or possessed of or entitled to any real or personal estate, goods, chattels, or effects, situate, lying, or being in England; and the said lord chancellor, lord keeper, or lords commissioners for the custody of the great seal of England, shall forthwith cause such copy of such order or decree, when it shall be presented to them respectively, so exemplified, to be enrolled in the rolls of the High Court of Chancery in England, and shall thereupon cause process of sequestration to issue against the real and personal estate, goods, chattels, and effects, in England, of the party or parties against whom such order or decree shall have been made, in order to enforce obedience to and performance of the same, in the same manner and form, and with the like power and effect, as if the cause wherein such order or decree shall have been made had been originally cognizable by and instituted in the said Court of Chancery in England, and as if all and every the process of the said Court of Chancery in England ordinarily issuing in causes there pending antecedent to process of sequestration had been duly issued and returned in the last-mentioned court; and it shall and may be lawful for the said lord chancellor, lord keeper, or lords commissioners of the great seal in England, to make such order and orders in respect of or consequent upon such sequestration, or in respect of the real or personal estate, goods, chattels, or effects sequestrated by virtue thereof, as he or they shall from time to time think fit, or for payment of all or any of the monies levied or received by virtue thereof. . . .” (h). Sect. 3 contains a like provision as to persons domiciled or residing, or seised or possessed of or entitled to any real or personal estate, goods, chattels, or effects, situate in Ireland. Sect. 7 of the Clergy Discipline Act, 1892, provides a special procedure for contempts under that Act (i). Contempt SECT. 9.-Release and Pardon. The act 3 & 4 Vict. c. 93, empowers the ecclesiastical courts to 3 & 4 Vict. order the release in certain cases of persons imprisoned under c. 93. the writ de contumace capiendo (j). It enacts as follows: charge of "It shall be lawful for the judicial committee of her Majesty's Court may most honourable privy council, or the judge of any ecclesiastical order discourt, if it shall seem meet to the said judicial committee or judge, persons in to make an order upon the gaoler, sheriff, or other officer in custody under whose custody any party is or may be hereafter, under any writ writ de contude contumace capiendo already issued or hereafter to be issued, in consequence of any proceedings before the said judicial committee or the judge of the said ecclesiastical court, for discharging such party out of custody; and such sheriff, gaoler, or other (h) For the practice of the Chancery Division, see Cooper v. Dodd, 15 Jur. p. 69; Daniell's Chancery Practice (ed. 1871), p. 933; (ed. 1884), pp, 909-992. (i) Vide supra, p. 104. ) As to the discharge of persons absolved from contempt, vide supra, p. 1100. mace capiendo. Provisoes as to consents. Form of order of discharge. Cases on this Effect of general pardon. officer, shall on receipt of the said order forthwith discharge such party: Provided always, that no such order shall be made by the said judicial committee or judge without the consent of the other party or parties to the suit: Provided always, that in cases of subtraction of church rates for an amount not exceeding five pounds where the party in contempt has suffered imprisonment for six months and upwards, the consent of the other parties to the suit shall not be necessary to enable the judge to discharge such party, so soon as the costs lawfully incurred by reason of the custody and contempt of such party shall have been discharged, and the sum for which he may have been cited into the ecclesiastical court shall have been paid into the registry of the said court, there to abide the result of the suit; and the party so discharged shall be released from all further observance of justice in the said suit." The form given by sect. 2 and the schedule is as follows: Warrant of Discharge. "To the sheriff [gaoler, or keeper, as the case may be] of in the county of "Forasmuch as good cause hath been shown to us [or me] [here insert the description of the judicial committee or judge, as the case may be,] wherefore A. B. of now in your custody, as it is said, under a writ de contumace capiendo, issued out of [here insert the description of the court out of which the writ issued], in a suit in which [here insert the description of the parties to the suit], should be discharged from custody under the said writ: We [or I], therefore, with the consent of the said [here insert the description of the parties consenting], command you, on behalf of our sovereign lady the Queen, that if the said A. B. do remain in your custody for the said cause and no other, you forbear to detain him [or her] any longer, but that you deliver him [or her] thence, and suffer him [or her] to go at large, for which this shall be your sufficient warrant. "Given under the seal of year of our Lord in the at the day of "A. B. registrar, or deputy registrar, or, as the case may be." The cases in which this act has been applied are Baker v. Thorogood (k), Hudson v. Tooth (1) and Dean v. Green (m). With respect to the effect of a general pardon issued by the king, it seems to have been always agreed, that the king's pardon will discharge any suit in the spiritual court ex officio: also it seems to have been settled, that it will likewise discharge any suit in such court ad instantiam partis pro reformatione morum or salute animæ, for such suits are in truth the suits of the king, though prosecuted by the party. charging Also it seems to be agreed, that if the time to which such As to dispardon has relation be prior to the award of costs to the party, costs. it shall discharge them and it seems to be the general tenor of the books, that though it be subsequent to the award of the costs, yet if it be prior to the taxation of them, it shall discharge them, because nothing appears in certain to be due for costs before they are taxed. Also, if after a person is excommunicate there comes a general Where party act of pardon, it seems that the offence is taken away without excommuniany formal absolution. Also, if a person be imprisoned on a writ de excommunicato capiendo, for his contumacy in not paying costs, and afterwards the king pardons all contempts, it seems that he shall be discharged of such imprisonment without any scire facias against the party; because it is grounded on the contempt, which is wholly pardoned; and the party must begin anew to compel a payment of the costs. cated. terest not But it seems agreed, that a pardon would not discharge a suit Suits in in the spiritual court, any more than in a temporal, for a matter matters of inof interest or property in the plaintiff. Also it is agreed, that discharged. after costs are taxed in a suit in such court at the prosecution of the party, whether for a matter of private interest, or pro reformatione morum or salute animæ, they shall not be discharged by a subsequent pardon (n). A person admitted to the benefit of clergy was not to be Pardon may deprived in the spiritual court for the crime for which he had free from had his clergy. For a pardon frees the party from all subse- deprivation. quent punishment, and consequently from deprivation (0). By sect. 59 of 20 Geo. 2, c. 52, which is the last act of general 20 Geo. 2, pardon, contempts in the ecclesiastical court in matters of cor- c. 52. rection are pardoned; but not in causes which have been commenced for matters of right; but by sect. 37, the offences of incest, simony, or dilapidation were excepted (p). Sects. 1 and 6 of the Clergy Discipline Act, 1892, contem- Under Clergy plate the grant of pardons by the Crown, and the removal Discipline thereby of any ecclesiastical punishment inflicted on a clerk (9). (n) 4 Hawk. p. 352; Gibs. tit. xlvi. Ch. x.; 2 Bac. Abr., Pardon (B.), p. 136; 3 Ib. Excommunication (F.), p. 349; Hull's Case, 5 Co. p. 50; Dr. Brickenden's Case, Cro. Car. p. 9; Rex v. Rudman, ib. p. 198; Bennet v. Easedale, ib. p. 55; Baldry v. Packard, ib. p. 47; Isabella Peel's Case, ib. p. 113; Palmer v. Whinney, Noy, p. 91; Latch. p. 190. Act, 1892. |