APPENDIX TO CHKONICLE. 



.113 



COURT OF king's bench, MON- 

 DAY, APRIL 18. 



London adjourned sSittings aftir 

 Hilary Term, 1814. 

 Ackerley, Esq. v. Femberton, 

 D. D. and Muwdsley, Clerk. — 

 This was an action brought by a 

 barrister residing at Bath, ag.iinst 

 the vicar general of the diocese of 

 Chester and his surrogate, for ex- 

 connmunicating the plaintiff. It 

 appeared, that the plaintiff's fa- 

 ther having died intestate at Ches- 

 ter, the plaintiff refused to take 

 out administration of his estate and 

 effects, and was sued bj' certain 

 persons having an interest in the 

 estate, as well in the Court of 

 Chester as in the Court of Chan- 

 cery, upon a bill filed against him 

 for an alleged intermeddiiui; with 

 such estate. The plamtiff was 

 cited in the Court of Chester for 

 notappearing, and was pronounced 

 contumacious ; and on the 29th 

 of December 1807, sentenced to 

 the pains oi the greater excommu- 

 nication. The lesser excomuiuni- 

 cation excludes a party only from 

 the communion of the church ; 

 the greater incapacitates him from 

 being a juryman, a witness, from 

 suing at law or in equity, and 

 upon a writ de excommunicato 

 capiendo being awarded, to impri- 

 sonment in any of his Majesty's 

 gaols till reconciled to the church. 

 The plaintiff" appealed against this 

 sentence to the Consistorial Court 

 of the archbishop of York, which 

 confirmed the sentence of the 

 Court of the bishoprick of Chester ; 

 and thence to the High Court of 

 Delegates, consisting of three of 

 his Majesty's justices, and four or 

 five doctors of civil law who re- 

 versed the sentence of excommu- 

 nication on the 7tl) of June, 1811 ; 

 holding, as the law certainly is, 



that there was no obligation upon 

 any man. to administer to an intes- 

 tate's estate. Mr. Park stated, 

 that the tirst question which would 

 be raised was, whether this 

 action could be maint;iined at all, 

 of which, after the late case of 

 Beaurain v. Sir William Scott (3 

 Campbell, 388) which had been 

 acquiesced in, there could be no 

 doubt; and the second question 

 would be, whether, if tlie action 

 could ever be maintained, it could 

 in this case, where the Court had 

 a clear jurisdiction, however they 

 might have mistaken the law. As 

 to this question, Mr. Park contend- 

 ed, that they had not a jurisdiction 

 to compel a man to take upon 

 himself the office of administrator. 

 Upon thesulfject of damages, it 

 was admitted that the plaintiff's 

 expenses incurred before the ap- 

 peal to the delegates was 841. 14s. 

 lid., and in that appeal 1791. 19s. 

 in additioii to which the jury 

 would give the plaintiff such com- 

 pensation for the anxiety and re- 

 proach of the excommunication as 

 they should think just; the sche- 

 dule of excommunication, though 

 transmi cted to the Bishop of Bath 

 and Wells, in whose diocese the 

 plaintiflf resided, was never read 

 ill the plaintiff's parish church, on 

 accoun t of the immediate appeal to 

 the court at York, and the plaiu- 

 tift" was absolved from excommu- 

 nication on the 28th of July, 1S08. 

 Lord Ellenborough said, there 

 was no doubt but that the sentence 

 was a nullity and void ; for, sup- 

 posing the Court had the power to 

 excommunicate a man for not 

 taking out letters of administra- 

 tion, (into which it was unneces- 

 sary to inquire, although he had 

 no very doubtful opinion upon the 

 subject), the plaintiff never wag 



