J14 ANNUAL REGISTER, 1814. 



required to take upon himself the 

 administration before he was ex- 

 communicated for the refusal ; he 

 was only required to appear and 

 show cause, so that he was never 

 in contempt. 



Mr. Abbott, for the defendants, 

 eaid, he should not contend that 

 the sentence of excommunication 

 was right ; but the latter part of 

 the original citation cited the plain- 

 tiff to appear and take administra- 

 tion. 



Lord Ellenborough. The offence 

 is expressly stated to be the not 

 appearing in ordine ad., and the 

 sentence is a nullity. His lordship 

 then observed, that the declara- 

 tion charged both the defendants 

 to have coaimitted the wrongs 

 maliciously. Now a principal is 

 not liable for the individual malice 

 of his agent ; the plaintiff must 

 therefore either abandon the charge 

 of malice against the a\gent, or a- 

 gainst both the defendants. 



Mr. Park said, there was no im- 

 putation of it against either. 



Mr. Abbott then submitted, that 

 upon the f.vce of the proceedings 

 it did not appear that the defend- 

 ant. Dr. Pemberton, was answer- 

 able at all. 



Lord Ellenborough ob>served, 

 that the schedule of excommuni- 

 cation was charged to be transmit- 

 ted by the defendants to the Bishop 

 of Bath and Wells ; it would be 

 a point very tit for the considera- 

 tion of the Court hereafter, whe- 

 ther the plaintiff, havingjoined the 

 defendants, and stated them joint- 

 ly to have committed certain 

 wrongs, could afterwards prove 

 against one only. He might have 

 charged the Vica .-General with 

 proceeding through the agency of 

 his surrogate. It appeared that the 



Vicar-General presided at the first 

 court. 



Mr. Abbott submitted, that the 

 words before the defendant Pem- 

 berton, &c. were merely the style 

 of the court, and did not neces- 

 sarily import that he was present; 

 and it was stated, that the surro- 

 gate vicar general decreed, &c. 



Lord Ellenborough said, he 

 should have listened to the learned 

 counsel's objection, if there had 

 been any person before named to 

 which the word "surrogate" would 

 apply; but the vicar-general was 

 before alone spoken of; and the 

 requisition afterwards was to ap- 

 pear before the said Thomas Pem- 

 berton, or his surrogate. 



Mr. Abbott then addressed the 

 jury, and contended, that if the 

 judge of the court had jurisdiction 

 of the subject matter, though his 

 sentence might be reversed as er- 

 roneous, no action at law against 

 him would lie. The sentence was 

 certainly erroneous, because no 

 day was assigned on which the 

 plaintiff was to take the adminis- 

 tration, and probably because the 

 Court had no right to compel him 

 to do so. 



Lord Ellenborough said, he 

 would give the defendants leave to 

 argue these points on motion for a 

 nonsuit ; and would at present as- 

 sume that the action was main- 

 tainable, the proceedings being 

 certainly irregular. The ecclesi- 

 astical courts were armed with no 

 other compulsory process than that 

 of excommunication : this his lord- 

 ship was aware was a great hard- 

 ship, and they exercised it under a 

 perilous responsibility. 



Mr. Abbott then confined him- 

 self to the question of damages: 

 — the pains of excommunication 



