Evefque. (K) Epifcopal Power in or out of the Diocefe. 1. THE ordinary has no power to appoint churchwardens, however long the parfon and parishioners delay to choose any; and if the fpiritual court proceed to compel one named by the ordinary to take upon him the office, a prohibition will go. Stutter v. Frefton, 1 Str. 52. 2. On a motion for a prohibition it was held, that the ordinary is the judge what ornaments are proper in a church, and may order the arms of a family fet up without his leave to be defaced. Palmer v. Epifcopum Exon. 1 Str. 576. 3. Where a lecturer was chofen by part of the parishioners and received by the rector, but the majority of the parish chose another, there being no falary or certain profits annexed to the office of lecturer, nor any fixed mode of election, the court refused to grant a mandamus to compel the bishop to license the lecturer refused by the rector, but faid that the bifhop has not an arbitrary power of refusing a licence. The King v. the Bishop of London, 1 Wilf. 15. 4. An ancient office with a falary, ufually granted for life before the 1 Eliz. c. 19., although ufelefs and merely nominal, may be granted by a bishop, as before that ftatute. Sir John Trelawney v. Bishop of Winchester, 1 Burr. 225. [A] 10Vin. 511 Excommunication. [A] (E) Excommunicato capiendo. I. Writ de excommunicato capiendo was quashed, being only for not appearing to answer certis articulis animæ fuæ falutem morumque correctionem concernentibus. Rex v. Munnery, Hil. 4 G. 1. Str. 76. 2. A writ de excommunicato capiendo ran thus: Significavit nobis (the bishop) quod J. P. (the vicar general) in a caufe between A. VOL. IV. K and 10Vin. 518. Convicium and B. for the contumacy of the faid B. ipfum præfat. B. excommunicandum fore decreviffet authoritate ipfius epifcopi ordinaria excommunicatus fuiffet. It was moved to quafh this, because the only nominative cafe to excommunicatus fuiffet is J. P. the vicar general, fo he is faid to be excommunicated and not the defendant. The court faid it was oddly penned, but refufed to quash it, because most of the writs in the office had been and were fo. Rex v. Clarke, Hil. 6 G. 1. Str. 265. 3. The court refused to deprive one in nicato capiendo of the benefit of the rules. 7 G. 1. Str. 413. cuftody on an excommuRex v. Buckland, Hil. 4. The court refused to quash an English excommunicato capiendo has a double that was for flander or defamation, faying, that was not uncertain meaning, and fignifies as convicium was. Rex v. Keat, Trin. 6 G. 2. reproof, as well as flander. Vide Keb. 132. S. C. Str. 950. 5. It was moved to quash a writ de excommunicato capiendo which recited the fignificavit to be of an excommunication for not appear ing to a libel in the ecclefiaftical court in a cause there, for subtraction of tithes AND other ecclefiaftical duties and emoluments, upon an objection that it was bad for uncertainty. But the court would not quash it, because the fignificavit is in the conjunctive, not in the disjunctive, as was the cafe of Rex v. Fowler, in Salk. 293. Rex v. Turfoot, Mich. 10 G. 2. Rep. temp. Hardwicke, 314. 6. Two fignificavits were quafhed, being only faid to be in a caufe which came by appeal concerning a matter merely spiritual. For per Lord Talbot-We are not to lend our affiftance but where it appears clearly they have jurifdiction, and are not to trust them to determine what is a matter merely spiritual. And he cited Fowler's cafe in Salk. 293. 10 Vin. br. 521. pl. 22, 23. v. Eyre, Mich. 10 G. 2. Str. 1067. Rex 7. Exception was taken to an excommunicato capiendo against two women, that by the writ the theriff was commanded to hold the two women until they had made fatisfaction, so that if one of them alone had made fatisfaction fhe could not be difcharged; and yet it appeared that the fuits against them were separate, for it was faid, "for adultery, &c. refpectively." And the court were clearly of opinion that it was fatal. Rex v. Caper and another, Eaft. 11 G. 2. Andr. 220. 8. Another objection taken in the cafe (pl. 7.) was, that there was no addition; it was not fo much as faid whether the defendants were spinsters, married women, or widows. And Lee, C. J. feemed to think the want of an addition a material objection. Ibid. 9. Another objection taken in the cafe (pl. 7.) was, that it was uncertain for what crime the defendants were proceeded againft below, the words being "adultery, fornication, or incontinence." But Probyn, J. faid, that though the crimes mentioned in the writ were in the disjunctive, yet as they were all of ecclefiaftical jurifdiction, it was well enough. Ibid. 10. To a motion to quash an excommunicato capiendo, it was objected, that the parties ought firft to appear upon an habeas corpus, but the objection was over-ruled. Andr. 220. 11. A writ de excommunicato capienda iffued out of Chancery, which was opened and inrolled in B. R., but upon exceptions taken to it the court made a rule upon the profecutor to fhew caufe why the delivery out of the writ to the fheriff fhould not be ftaid; before an opportunity came to fhew cause, the return of the writ was out, and the profecutor fued out a fecond writ e cancellaria, and to prevent the lofs of that defired that the defendant might at once take his exception by a motion to quash. Whereupon it was excepted, that the former writ being inrolled in B. R., the Chancery could not iffue a second, but it should have issued in B. R. To this it was anfwered and refolved, that the act 5 Eliz. c. 23. related only to the cafe where the first writ had actually iffued, and the sheriff had returned non eft inventus, where the court can fine him if they fee occafion, and iffue capias alias & pluries. If the firft writ had been actually quashed, they must have gone to the Chancery for another. Rex v. Eyre, clerk, Trin. 16 G. 2. Str. 1189. 12. Another exception taken in the cafe (pl. 11.) was, it was faid to be, on an appeal and complaint of nullity; now from a nullity there lies no appeal: but it was anfwered, that it was their form to which regard must be had. Ibid. 13. A third objection taken in the cafe (pl. 11.) was, that the judge was made a party, and was condemned in cofts. To which it was answered, that in this cafe there could be no other, he ex officio excommunicates a man, that man appeals, and muft make fomebody a party, and there is no promoter, and therefore he cites the judge; the fuperior jurifdiction is of opinion that he has done the man an injury, and therefore it has been held that it was proper to make him a party, and that he was liable to costs. Ibid. 1.UPON a motion for leave to take out execution upon a judgment, whereon a writ of error had been brought and the record certified, but the writ of error quashed, there arofe a queftion, Whether the execution fhould be taken out of the Queen's Bench, to which court the record had been removed by the writ of error, or out of the Common Pleas; and in order thereto, whether K 2 10 Vin. 535. whether the mittitur ought not to be struck out of the roll? A rule was granted to. fhew caufe why the mittitur fhould not be ftruck out, which was afterwards made abfolute. Anonymous, Hil. 12 Ann. Caf. Pract. C. P. 9. 2. Upon a writ of error to the Houfe of Lords from the court of King's Bench, a tranfcript only goes up, and the record is fuppofed to be fent back again to the K. B., and if the judgment is affirmed, the latter court muft fue out execution. Per Lord Mansfield, C. J. in Vicars v. Haydon, Trin. 18 G. 3. Cowp. 843. 3. On a writ of error from the C. P. into the K. B., though a transcript only is removed, the K. B. may award execution. Ibid. 4. The action was brought in the Common Pleas at Lancaster, and after verdict for the plaintiff the defendant brought a writ of error in the K. B., which was nonproffed; whereupon the plaintiff fued out execution in the latter court, which was held to be right practice, it not being ufual to fend the record back again to the county palatine court. Cowperthwaite v. Owen and another, Eaft. 30G. 3. 3 Term Rep. B. R. 657. 10Vin. 547. (N) How it fhall be made. Where joint, and where feveral. But it feemed agreed the writ of error might have been quafhed, be caufe fued out by one defendant only. I. JOINT OINT action againft feveral defendants. Damages 201. against four of them on the trial, and 5s. against one, who had let judgment go by default. Writ of error brought by the four in the name of the one, who was not obliged to find bail because it was by default. Leave was granted to take out execution against the four, notwithstanding the writ of error. Mafon v. Simmonds and others, Eaft. 9 G. 2. Barnes, 202. 2. The defendant was partner with B.,-against whom a commiflion of bankrupt had iffued; but before the bankruptcy the plaintiff had sued out execution on a bond of the defendant's for 700, and the fheriff had levied on the partnership effects. On application to the court, it was ordered that it fhould be referred to the Mafter to take an account of the fhare of the partnership effects to which B. was entitled, and that the theriff thould pay a part of the money levied, equal to the amount of fuch fhare, to the affignees. Eddie v. Davidfon, Eaft. 21 G. 3. Dougl. 650. 3. Final judgment was figned against W. and M. in Trinity term 1787. M. had been arrested and committed to prifon for want of bail, but was not charged in execution in the next term after judgment, according to the regular courfe of proceedings. W., in Mich. term 1787, brought a writ of error in the Exchequer chamber (to which M. was no party), where the judgment was affirmed in Hil. term 1788. And afterwards a joint execution was iffued against both defendants. It was moved to dif charge M. out of execution, because he was not charged in execution within two terms after final judgment. Sed per cur. The The writ of error removed the record into the Exchequer chamber; and till it was remitted, there was no record in this court on which the plaintiff could have charged the defendant in execution. Laroche v. Wafbrough and another, Mich. 2) G. 3. 2 Term Rep. B. R. 737. 4. E., one of two defendants, having been taken on a ca. fa. Vide poft. iffued against both defendants, was fet at liberty by the plaintiff let. (M. a), on an undertaking by him to render hirfelf on a given day, if Pl. 3 he did not in the mean time pay the debt; on which the other defendant C. moved that the writ of ca. fa. might be quafhed, and fatisfaction entered on the roll. And per Lord Kenyon, C. J. C. is entitled to be releafed from the effect of this writ of execution; for, this being a joint execution, as the plaintiff fuffered the other defendant to be discharged out of cuftody, he cannot now take C. But there is no reafon why we should make this rule abfolute in its full extent; it will fatisfy the juftice of the cafe if the writ be quathed. Clark v. Clement and English, Hil. 36 G. 3. 6 Term Rep. B. R. 525. 5. Afterwards, in the cafe, pl. 4., the plaintiff fued out a feparate execution against E., which was fet afide on motion; for a feparate execution on a joint judgment cannot be fupported. Ib. (P) Who fhall have Execution. 1. IN an action by baron and feme, plaintiffs, the fieri facias commanded the fheriff to have the money when levied at the return in the court, to be rendered to the husband only, and not to the hufband and wife. The fieri facias and execution thereon were fet afide. Handbury Ux. v. Cowper, one, &c. Mich. 29 G. 2. Barnes, 42. 10Vin. 557. 2. The plaintiff became a bankrupt between interlocutory and Vide 2 Wilf. final judgment, and fued out execution in his own name; it was 374, objected that the aflignees fhould have fued out a fei. fa. to revive the judgment, and then have taken out execution. But the court faid, the bankruptcy of the plaintiff did not abate the fuit, and that they had in feveral inftances permitted the affignees to continue a fuit.commenced by a bankrupt in his name. Waugh v. Auflen, Mich. 30 G. 3. 3 Term Rep. B. R. 437• Feme. ON a plea of coverture, in an action of debt upon a judgment, a verdi was found for the defendant, and a writ of fi. fa. fued out for the cofts, commanding the fheriff to levy and pay to the defendant and her husband. This was held by the court to be irregular without a fei. fa.; but the wife might have had procefs in her own name; becaufe, the plaintiff having declared against her as fole, he was concluded from denying it. Wortley v. Rayner, Eaf. 21 G. 3. Dougl. 637. |