Nor, upon the certificate of an official, commissary, (q) abbot, &c. F. N. B. 64. F. (r)

(B 3.) In what manner.

The certificate of the bishop ought to signify, that he has been excommunicated for forty days. F. N. B. 64. D. 12 Co. 76.

That he was excommunicated by special name, and in a special suit against him ex officio, or by the party: for otherwise he does not incur the greater excommunication. F. Ñ. B. 64. F.

That he was commorant within the diocese of the bishop, by whom he is excommunicated. R. Mo. 467. Semb. Lat. 174. (s)

By what bishop he was excommunicated. R. Mo. 775.

And for what cause articles were exhibited. 1 Rol. 146. (t) Semb, Otherwise it will not appear whether it was within the jurisdiction. 1 Sal. 293.

B 4.) How the writ shall be executed.

If the party be taken upon the excommunicato capiendo, he shall be committed to prison. (u)

And the sheriff shall return his writ; but by the st. 5 El. 23. he need not bring the body into court.

If the sheriff returns, non est inventus, by the st. 5 El. 23. there shall go a capias with proclamation, on which the sheriff shall make proclamation ten days before the return, at the county-court, assises, or

(7) By the antient common law, as was said by Hankford, 11 H. 4. 64. a. a commissary might certify excommunication; and that he was restrained by parliament. 3 Bac. Abr. 335.

(r) Vide 8 Co. 65. Ro. Abr. 434. reg. 65.

(s) An excommunication is good, if the party was resident within the jurisdiction at the time of citation, though not when excommunicated. 7 T. R. 153.

(t) 1. It seems that at common law the significavit of an excommunication might be upon a general clause, as propter contumacium, or de non parendis mandates ecclesiæ. Salk. 293.350. Ld. Raym. 586. 618. Gibs. Cod. 1097.-2. But now by the 5 Eliz. c. 23. the cause must be set forth in the writ de excommunicato capiendo itself; because by that statute the writ is made returnable in B. R., which would be to no purpose if the cause were not set forth in the writ, so as to enable the court to judge thereof.-3. But it was always holden, that the bishop's certificate signifying the excommunication into chancery, on which the writ of excommunicato capiendo issued, ought to comprise the particular cause of the excommunication; so that the court might judge whether it were a matter within their jurisdiction or not. 14 H. 4. 14. B. Rol. Abr. 883.4. The cause may be set forth generally. 2 Atk. 498.-5. If it is said that the offender officiated, without saying where, it is sufficient, for the term implies that it was in public. Ibid. 6. And so it is, though it is not said that he officiated at the time of the excommunication in the diocese of L. Ibid. -7. So likewise, though it does not say that the excommunication was pronounced by a person in holy orders; there being an assertion that he was lawfully authorised. Ibid. -8. So though it does not say when the excommunication was pronounced. Ibid.-9. A significavit of excommunication in a cause for subtraction of tithes, and other ecclesiastical duties, is good; though if in the disjunctive or other, &c. it is bad for uncertainty. C. T. H. 314. Salk. 293. Ld. Raym. 619. 2 Atk. 499.-10. Where in a writ of excommunicato capiendo, the recital of the significavit was, that he was excommunicated for not paying the costs in quodam negotio puerorum educationis sive instructionis, sine aliquâ licentiâ in eâ parte prius obtenta, the writ was quashed for uncertainty; because it might be a teaching to fence or dance, and not letters. Salt. 294. Ld. Raym. 818. 1415.

(u) 1. Persons excommunicate, taken at the request of the bishop, are expressly held to be irreplevisable.-2. But the court of K. B., it has been said, may, as well before as since this statute, bail a person taken upon excommunicato capiendo. Bulst. 122.-3. But the court in a later case refused it. 7 Mod. 61.-4. And being a commitment in execution, it seems that the court have no power to bail. 1 Show. 16.

quarter

quarter sessions, that the party in six days render himself, and if he doth not he shall forfeit 107. (x).

And after that shall go a second capias with proclamation, and thereon, 201. penalty, and so a third, and in infinitum, each with 20l. penalty; and if the party be taken, he shall be committed without bail, as on an excommunicato capiendo.

If a person after his commitment escapes, and the 'sheriff has not returned his writ, a capias excommunicatum de novo shall go. Mod. Ca. 78. Otherwise, if the writ be returned. Mod. Ca. 78.

Or, if after commitment upon the former writ, he be removed by habeas corpus. Dub. Mod. Ca. 78.

But by the st. 5 El. 23. a person in prison out of the realm, within age, non sane, or feme covert, shall not incur the said penalties.

Nor any, who in the writ of excommunicato capiendo shall not have the addition required by the st. 1 H. 5. 5.

Nor, if in the significavit it be not contained, that the excommunication was for contempt in some original matter of heresy, refusal to baptize his child, to receive the communion, to come to church, or in some error of religion or doctrine, incontinency, usury, simony, perjury in the ecclesiastical court, or idolatry.

And therefore, if a capias with proclamation goes against any in prison, within age, &c. when taken upon it, he may plead such matter in discharge of the penalties given by the st. 5 El. 23.

So, if he has not a proper addition. Sho. 16. Jon. 226. (x) So, if the significavit to chancery does not show, that the excommunication was for one of the causes contained in the statute. Car. 197. 199. 2 Jon. 89. R. 1 Rol. 174. R. 12 Co. 77.

Cro.

So, if the writ of excommunicato capiendo was not delivered upon record. Semb. 1 Sid. 165. R. 1 Sid. 285. 1 Vent. 309.338.

So, if the party comes upon a habeas corpus, and it appears that the writ of excommunicato capiendo does not show good cause for excommunication; B. R. since the st. 5 El. may quash the writ, or award a supersedeas. (y) R. 1 Sal. 293, 294.

So, if the cause be uncertain: as, in a cause substractionis decimarum, sive aliorum jurium ecclesiasticorum; for perhaps the alia jura were not within the jurisdiction of the court. R. 1 Sal. 293.

(r) This statute doth not take away or affect the excommunicato capiendo at common law, but in the particular cases therein mentioned gives a greater penalty to enforce it; and therefore the writ doth not only issue upon excommunication in any other cases; but as hath been often adjudged, though a capias with proclamations and penalties go forth in a matter not within this statute, and the person be thereupon imprisoned, and pray to be discharged; because the matter for which he was excommunicated (though of a spiritual nature) is not within this statute, yet nothing shall be discharged, but the penalties, and (without any new writ obtained) the excommunication and imprisonment may remain as at common law, and not be discharged but by absolution in due form. Gibs. Cod. 1106. But for this, vide Cro. Car. 197. 199. Ro. Abr. 175. Jon. 226. Latch. 174. 204. 2 Jon. 89. Show. 17. 3 Mod. 42, 43. Skin. 167. Vern. 24. Salk. 294. 7 Mod. 56. 117.

(x) 1. Salk 294. 2. But where the parties were named A. B. merchant, C. D. gentleman, E. F. yeoman de paroch. de D., this was held well, though it was objected that the addition of the parish should refer to him only who was last mentioned. 3 Mod.

42. Skin. 176.

2. K. B. may quash an excommuni3. But it will not in the absence of the party taken up upon

(y) 1. Str. 43. Vide Dick. 473. 5 Ves. 113. cation. Ld. Raym. 618.it. Ibid.

In quodam negotio instructionis puerorum sine licentia, without saying, in what he instructed them. R. 1 Sal. 294.

Yet the writ of excommunicato capiendo stands in force, though the penalties are discharged for want of the addition. Semb. Sho. 16. R.

2 Jon. 89. Semb. cont. 1 Sal. 294, 295. R. Jon. 226.

Or, for that the significavit does not contain any of the causes required by the statute. Semb. Cro. Car. 197. Adm. Cro. Car. 199.

R. 2 Jon. 89. R. 3 Mod. 89. R. Lat. 204. R. 1 Sal. 294.

So an excommunicato capiendo lies now by the common law, for causes not mentioned in the st. 5 El. 23. Per Windham, 1 Sid. 181.

So, if an excommunicato capiendo be awarded according to the statute for a cause not mentioned there, the party shall not be discharged on motion, or suggestion, without a habeas corpus returned, and plea to it. R. 1 Sid. 181. Lat. 174. R. 1 Sal. 294.

So he shall not be discharged for a misnomer; for he has no day to plead, and may have false imprisonment if he be not named in the writ. R. 1 Mod. 70.

So, if several are named in the significavit, and at the end of the names it be added, of the parish of A. in the county of B. this addigoes to each of them. R. 3 Mod. 42, 43.

tion

So, if the significavit mentions an excommunication for not coming to his parish-church, it is sufficient; though the statute says, generally, come to church; for he might plead it, if he was at another church. R. 3 Mod. 42, 43.

So he cannot plead or move to quash the writ before the return. R. 1 Sal. 294.

(B 5.) How discharged.

If the party excommunicated makes satisfaction to holy church for his contempt, and the bishop, &c. certifies it to the chancery, a writ goes to the sheriff for his discharge. F. N. B. 63. A.

And upon that an alias and pluries: and if the sheriff does nothing, an attachment against him returnable in B. R. F. N. B. 63. B.

So, if he gives caution to the bishop to obey, &c. and this be certified to the chancery. F. N. B. 64. A. (z)

So, if the excommunication was pronounced and certified after a prohibition sued, and an attachment upon it, the party may shew it to the court, and shall have a supersedeas out of chancery.

B. 64. D.

F. N.

Or, if the attachment was returned, he shall have it out of B. R. F. N. B. 64. D.

So, upon a certificate by the official, that the excommunicate has appealed. F. N. B. 64. E. 1 Ver. 24.

Or, after appeal, he may sue out a scire facias against the bishop and the party at whose suit he was excommunicated, and at the return of the scire facias, if it be not denied, he shall have a supersedeas. F. N. B. 65. E.

And if the matter cannot be determined at the day of the return, it shall be adjourned, and in the mesne time he shall have a special supersedeas. F. N. B. 65. E.

So, if the bishop certifies, that he has commanded the official to ab

VOL. IV.

(z) Gibs. Cod. 1110,
P

solve

solve him, he may thereupon have a writ for his discharge when absolved. F. N. B. 63. F.

And upon that an alias, and pluries, and if the sheriff does not regard them, an attachment against him. F. N. B. 63. F.

Upon which writs the sheriff ought to inform himself, as well as can, whether he be absolved; for the official is not bound to certify him thereof. F. N. B. 63. G.

he

So, if the excommunicato capiendo appears to have been granted without good cause, it may be superseded by chancery at the common law; and now, since the st. 5 El. by B. R. 1 Sal. 293. Semb. cont. 1 Ver. 24. (a)

But if the bishop refuses to take caution or surety to obey the holy church, the excommunicate shall have a writ de cautione admittenda by which the bishop shall be commanded to take caution, and to command the sheriff to deliver him. F. N. B. 63. C.

And if the bishop refuses, he shall have a writ to the sheriff, quod accedat ad episcopum, et moneat ut acceptá cautione mandet deliberari, et si idem episcopus noluerit, &c. then the sheriff shall deliver him. F. N. B. 63. D.

And thereupon he shall have an alias and pluries, and if the sheriff neglects, an attachment against him. F. N. B. 63. E.

So, if the excommunication be contrary to the law of the realm, so that he cannot have a writ de cautione admittenda, (for then he would be bound parere mandatis ecclesiæ,) he shall have a writ to the bishop out of chancery, to absolve him: as, where the cause was out of the cognizance of the spiritual court, and it so appears upon the libel. R. 12 Co. 76.

So, if the cause, upon which he was excommunicated, be pardoned. R. 12 Co. 76.

And this; though the party be taken by a writ of excommunicato capiendo. R. 12 Co. 76.

Or, in such case, if the bishop, upon shewing that he was excommunicated for a matter pardoned, or out of the cognizance of the spiritual court, &c. and upon request, refuses to absolve him, an action upon the case lies against the bishop. R. 12 Co. 77.

But if the excommunication was in a cause, which appears by the libel to be sued out of the diocese; there shall not be a writ out of chancery to the bishop to absolve him, but the writ de cautione admittendâ is sufficient: for though the st. 23 H. 8. 9. disallows a suit out of the diocese, yet there are many cases in which it may be so. R. 12 Co. 77. (b)

(C) Absolution.

Absolution ought to be by the same bishop, who excommunicated, or by him, or to whom the cause is removed by appeal. R. Mo. 775. But, if a man be twice excommunicated, and absolved upon the last; the first stands in force. R. Mo. 849.

(a) Upon notice. 15 Ves. 346.

(b) If an ecclesiastical judge pronounce the greater excommunication instead of the less, he does not exceed his jurisdiction, but only trangresses the forms of his court; the only mode, therefore, of objecting to it is by appeal, and the judgment is unimpeachable in collateral proceedings. 7 T. R. 153.

EXCUSE.

EXCUSE.

Vide EXOINE. PLEADER, (E. 15. F 18.-3 O 15, &c.) - RE

TORN, (D 1. &c.)

EXECUTION.

(A) Erecution in real actions.

(A 1.) By entry. p. 212.

(A 2.) By habere facias seisinam. p. 213.
(A 3.) How it shall be done. p. 213.

(A 4.) By scire facias. p. 214.

(A 5.) By habere facias possessionem. p. 214.
(A 6.) Execution upon a fine, and common recovery.
p. 215.

(B) Execution for the king.

(B 1.) By capias pro fine, or capias utlagatum. p. 216. (B 2.) When any in execution for the king shall also be so for the party. p. 216.

(B 3.) Execution for a debt to the king: - To what thing it extends. p. 217.

(B 4.) By what process done: - By extendi facias. p. 217.

(B 5.) What lands, &c. shall be extended. p. 218.

(C) Execution for a common person: in personal actions. (C 1.) What, by the common law. p. 219.

(C 2.) What not. p. 220.

(C3.) What, by statute :

Execution against goods and chattels : - By levari facias. p. 220. (C 4.) By fieri facias: What things may be taken. p. 221.

(C 5.) How the sheriff shall proceed upon it. p. 223. (C6.) How he shall sell. p. 225.

(C 7.) How he shall make the return. p. 226.

C 8.) Venditioni exponas. p. 226.

(C 9. By capias ad satisfaciendum :

p. 226.

When it lies.

(C 10.) When the defendant shall be in execution. p. 229.

(C 11.) When not. p. 229.

(C 12.) An arrest, what shall be. p. 230.

(C 13.) When the defendant shall be discharged. p. 231. (C 14.) By elegit. p. 231.

P 2

(D) To