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S. 6.


Due erecution

quest to be lawful; upon pain of forfeiture to the person cited, of double damages and costs, to be recorered by l'enaliy. action of debt, or on the case, in any court of record; and als) of £10. for every person so cited, one half to the king, and the other half to him that will sue in any court of record by writ, information, bill, or plaint. Provided, (s. 4.) that it sluill be lawful for every arclabishop to cite any person inhabiting within his province, for causes of Prociso as to he. heresy, if the ordinary immediate consent, or do not resy. liis duty And provided (s. 5 & 7.) that this act shall s. 5 & 7. not extend to the prerogatives of the archbishops of Can- Preciso as to proterbury and York, of calling persons for probate of testaments within their respective provinces. By s. 6. no archbishop, &c. or other having spiritual jurisdiction, Fecs for citasha'l demand more for the seal of any citation, than 3d. upon the pains before limited. The jurisdiction of the ecclesiastical courts is aided by the 5 Eliz, c. 23. Eng S1 Eng.

s. 1. which ecites, (s. 1.) that divers offences appertaining to the juris liction of the ecclesiastical courts and judges, are

of the writdeermany times unpunished for want of the due execution of communicato

capiendo prothe writ de excommunicato capiendo ; for that the said writ vided for. is not returnable into any court that might have the judgment of the well executing and serving of the said writ, &c; and therefore enacts, (s. 2.) that every writ of ercommunicato capiendo, that shall be awarded out of the court of chancery against any person within the realm, shall be inade in ter r, and returnable in the court of K. B. in the term after the tesle; and said writ shall contain 20 days between the teste and the return: And after the said writ shall be so made and sealed, it shall be forthwith brought into said court of K. B. and there, in the presence of the justices, opened and delivered of record to the sheriff, or other officer, or his deputy: And if the writ be not duly returned, or any default be in the not-executing said writ, the justices shall assess such amercement upon the sheriff, or other officer, as shall be thought meet; wbich

amercement shall be estreated into the exchequer. By · s. 3. the sheriff, &c. shall not be compelled to bring tlie body of such person named in the writ into the court at the day of return, but shall only return the writ with de

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S. 3,

S. 4.

claration briefly how he hath executed the same. And by s. 4. if the sheriff, &c. shall return, that the party cannot be found within his bailiwick, the justices shall award a capias against the person named in the excommuficuto capiendo, réturnable in term time, 2 months at Jeast after the teste, with a proclamation to be contained within the writ, that the sheriff, &c. in the full county court, or else at the general assizes and gaol delivery, or else at a quarter sessions, shall make proclamation 10 days at least before the return, that the party shall within 6 days after such proclamation, yield his body to the prison of the said sheriff, &c. according to the first writ of excommunicato capiendo, upon pain of forfeiture of £10. And thereupón, after the proclamation had, and the 6 days past, the sheriff, &c. shall make return of the eapias into said court of K. B. of all that he hath done, and

whether the party have yielded his body to prison or not. s. 5. By s. 15. if the parties have not yielded their bodies to

prison according to the proclamation, every such person Penalty for disa obedience.

shall, for every default, forfeit to the crown £10. which shall be estreated into the exchequer. And by s. 6. the justicés shall thereupon award ove other capias with like

proclamation, and a pain of £20. to be mentioned in the Second capias. 2d writ and proclamation; and the sheriff, &c. shall exe

cute the same in like manner as the first. And if the sheriff, &c. return upon the 2d capias, that he hath made the proclamation, and that the party hath not yielded his body to prison, tlień the said party shall forfeit to the crown £20. which the justices of K. B. shall likewise cause to be

estreated. And by s. 7. the justices shall likewise award Third capias. one other capius, with like proclamation and pain of for

feiturë as wás contained in the 2d capias; and the sheriff, &c. shall execute tlie 3d capias in like manner as the 1st and 2d writs. And if the sheriff, &c. shall make return of the 3d capias, that the party hath not yielded his body to prison, such party shall forfeit to the crown other £20,

which shall likewise be estreated: and thereupon the said Cap'as, and penalty of £20. justices shall award a capias, with like proclamation, and continued infi- like pain of forfeiture of £20. and the said justices shall

have power award such process of capics , givard

S. 6.

s. 7.

S. 8.

the party.'

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S. 10.

9. 11.

with like proclamation, and pain of forfeiture of £20. until by return of some of said writs it shall appear that the party hath yielded himself to the custody of the said sheriff, &c. By s.8, when any person shall yield his body to the sheriff, &c. upon any of the said writs of cumas, he shall Imprisonment of remain in prison without bail, baston, or mainprize, as if he had been apprehended upon the ercommunicato capiendo. By s. 9. if any sheriff, &c. make an untrue re. turn upon any of the said writs, that the party hath not Forfeiture of

sheriff yielded his body upon the proclamations, such sheriff, siuenitf for false; &c. shall forfeit £10. which the party grieved shall recover by action of debt, &c. in any court of record. By s. 10. all archbishops and bishops, and others liaving autho- Archbishops lo

receive and sig. rity to certify any person excommunicated, shall have like n fy submissions. authority to receive the submission of the person exconnunicated, and him to absolve and release; and the same to signify into the chancery, and thereupon to have such writs for the deliverance of the person absolved, as heretofore. Provided (s. 11.) that in Wales, the counties palatine, and in the cinque ports, after any significavit Proviso as to

. being of record in the chancery, the tenor of such sig. Hales, &c. nificarit by mitimus shall be sent to the head oficers of the county in Wales, &c. within whose jurisdiction the offender shall be resiant, viz. to the cliancellor or chamberlain for the county of Lancashire, and Chester; and for the cinque ports, to the lord warden; and for Wales, and Ely, and the county of Durham, to the chief justice or justices there; and the said officers sliall have power to make like process to the inferior officers there, returnable before the justices there at their next sessions or courts, 2 montlıs at least after the teste of such process; so as they shall proceed in their sessions and courts as the justices of the court of K. B. are so limited in term-times to do. By s. 12. any person at the tiine of any such capias awarded, being in prison, or beyond the seas, or within

Saving for disa age, or non sane memoriæ, or woman covert, shall not abled persons. incur the forfeitures aforementioned; and the party grieved may plead every sucli matter in bar, upon the distress or other process that shall be made for levying the said forfeitures. And by s. 13. if the offender, against


3. 12.



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s. 14.

Addition of par. whom such writ of excommunicato cupiendo sliall be ty required in awarded, shall not in the same writ have a sufficient ad

dition, according to the i Hen. 5. c. 5.; or if in the sig.
Curses of ercom-
muunication to be nificavit it be not contained, that the excoinmupication

doch proceed upon some cause or contempt of some ori-
ginal matter of beresy, or refusing to have his child bap-
tized, or to receive the communion, or to come to divine
service, or error in matters of religion or doctrine, in-
continency, usury, simony, perjury in the ecclesiastical
court, or idolatry, then all forfeitures limited against
such persons shall be void; and by way of plea

to be allowed to the party grieved. And by s. 14. if the Adhtion with a addition shall be with a nuper of the place, then, one nuper.

writ of proclamation, (without any pain expressed) shall
be awarded into the county where the offender shall be
most commonly resiant at the time of awarding the first
capias with pain, returnable the day of the return of the
first capias. And if such proclamation be not made in
the county where the offender shall be most commonly
resiant, such offender shall sustain no forfeiture for not
yielding his body. There is no statute in Ireland, similar
to the 23, Hen. 8. c. 9. or 5 Eliz. c, 23,

The statutes which relate to the jurisdiction of the
court military, or court of chivalry; and of the courts
maritime, or admiralty courts, and whiclı statutes define

the injuries cognizable in these courts respectively, will $ 2.

be found in a preceding chapter of this book, Cases wherein

II. With respect to the encroachment of jurisdiction, the unit of poo, for which injury a remedy is provided by the writ of pro

lieth not.
13Edw. 1. st. 4. hibition issuing out of the court of king's bench; the
E. & I.

13 Edw. 1. st. 4. E. & I, declares, that the clergy
shall not be punished if they hold plea in court clıristian
of such things as be merely spiritual, viz. of pe-
nance enjoined by prelates for deadly sin, as fornica-
tion, adultery, and the like, for wbich sometimes corpo-
ral penance, and sometimes pecuniary, is enjoined, es-
pecially if a freeman be convict of such tsings. Also if
the prelates punish for leaving the church yard unclosed,
or for that the church is uncovered, or not conveniently
decked, in which cases none other penance can be en-
joined but pecuniary. And if a parson demand of his



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c. 1. E. & I.

where lithes be

C. 2.

parishioners oblations or tithes due or accustomed, or if a parson sue against'another parson for tithes greater or smaller, so that the fourth part of the value of the benefice be not demanded; or if a parson demand mortuaries wliere a mortuary hath been used; and if a prelate (or patron) demand of a parson a pension due to him; all such demands are to be made in a spiritual court : And for laying violent bands on a clerk, and cause of defamation, it shall be tried in a spiritnal court, when inoney is not demanded, but a proceeding for punishment of sin. In all cases afore tehearsed, the spiritual judge shall have power to take cognizance, notivithstanding the king's probit,ition. And by the 9 Edw 2. st. I. c. 1. 9 Fdw. 2 st. 1. prububition

9 E. & I. in tithes, obventions, oblations, mortuaries, (when they are propounded under these nanies) the king's pro- No prohibition bibitioíi stall hold no place. But if a derk sell his tithes, demunded. being gathered, if the money be demanded before a spi

Exception. ritual judge, the king's prohibition shall lie, for the spiritual goods are made temporal. But by this statute (c. 2.) if debates arise upon the right of titles, liaving original

If right of lithos from the rights of patronage, and the quantity of the controverted,

prohibition lies, tithes come to the foúrılı part of the gooiis of the church, the king's prohibition shall bold place, if the cause conic before a judge spiritual. Also if a prelate enjoin a pe- So if pecuniaria

peuduce ella nance pecuniary, and it be demanded, the king's procla- joined. mation shall bold place; but if prelates enjoin a penance corporal, and they which be punished will redeem such penance by money, if the money be demanded before a judge spiritual, the king's prolribition shall not hold place. But by c. 3 & 4. in cases of laying violent lands upon a C. 3 & 4. clerk, or in cases of 'defamation, if the offender will re

Excprior deem the penance corporal (which by tliis statute the

prelate may enjoin) by giving money to the prelate, or the party grieved, it shall be required before the prelate, and the king'prohibition shall not lie. And by the 1 Elw. 3. st. 2. c. 11. E. & I. when clerks or others have i Pdv. 9.8. been indicted in the turn, and after their deliverance do sue in the spiritual court against the indictors, surmising Nu suit in pizthat they defamed them; in such case every man grieved

ag unst indicis shall have a prohibition formed in the chancery upon his ors.


c. 11. E. & I.

tual court


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