280 



ANNUAL REGISTER, 1813. 



given by the court to plaintifF, of 

 the appointment. It was the custom 

 of the court to give directions to 

 the proctor to give notice, be- 

 fore he signs the schedule of ex- 

 communication. Morley was par- 

 ticularly directed to give plaintifF 

 notice that he was appointed. He 

 did not consider the issuing of a 

 citation, as according to the cus- 

 tom of the court. There never 

 had been in his recollection an in- 

 stance of the kind, that is, of a 

 minor cited, to answer in a cause 

 of separation. He considered 

 the father virtually before the 

 court, by the proctor giving in 

 the affidavit. The plaintifF was 

 thrice publicly called: the proctor, 

 on the other side prosecuted the 

 schedule of excommunication ; but 

 the judge directed it to be sus- 

 pended till the next bye day, about 

 nine days. The schedule of ex- 

 communication was then put in; 

 by which it appeared that plaintifF 

 was excommunicated by defend- 

 ant, for manifest contempt and 

 contumacy, in not appearing at a 

 certain time and place. 



Cross-examined by the solicitor- 

 general. — He was excommuni- 

 cated for not appearing, not for 

 refusing to become guardian ; liis 

 presence was required; the pro- 

 ceedings were according to the 

 practice of the court ; the appa- 

 ritor makes proclamation, and on 

 his not coming in, the schedule of 

 excommunication is of course. If 

 the party comes in after schedule 

 is signed, and conforms, the ex- 

 communication doesnot take place. 

 The court could not proceed with- 

 jout a guardian having been ap- 

 pointed; and as the opposite party 

 waved alimony and costs, the 

 guardian could not be liable to 

 any costs unless he had appointed 



a proctor ; but he might have ap- 

 peared in person, and one act of 

 appearance would have been suffi- 

 cient to have launched the cause, 

 and it would have afterwards pro- 

 ceeded in pcenam. The day he 

 might have come in, he appealed. 

 Morley having brought in a joint 

 affidavit, plaintiff was considered 

 as having appeared; notice was in- 

 ferred from the course of our pro- 

 ceedings. He who has once ap- 

 peared, is considered as appearing 

 from day to day. The appeal be- 

 ing lodged, proceedings were stay- 

 ed: but the proctor having brought 

 in the remission from the court of 

 appeal, had that court reversed 

 our proceedings, the excommuni- 

 cation could not have issued ; he 

 might have appealed to the dele- 

 gates. 



Morley, a proctor, examined— 

 stated that plaintifF had applied 

 to him in the cause of his son. He 

 told him his son must appear by 

 guardian. Plaintiff' said he would 

 never appear as his guardian, his 

 conduct having been very bad. 

 Never knew an instance of excom- 

 munication for not being a guard- 

 ian ad litem. Never appeared for 

 plaintiff"; had orders not to appear 

 for him. No citation was served 

 on plaintiff"; that was the ground 

 of his appeal. 



Cross-examined. — Plaintiff con- 

 sulted him for his son and himself: 

 all he did was on the credit of the 

 father. There was not an appear- 

 ance entered : he took instructions 

 from both for the affidavit : he 

 thought the plaintifF attended in 

 court, and refused to be guardian. 

 He told plaintifF that the schedule 

 of excommunication was signed. 

 Had plaintiff employed him as 

 proctor, he would have been liable 

 to his attendance every court-day, 



