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![handle is hein.slavery/ssactsengr0016 and id is 1 raw text is: THE KING V. WILKINSON
must be understood to have been cited out of the diocese. Godbolt, 191 is Fraunces
and Powell's case. It was a motion for a prohibition for citing the plaintiff out of his
diocese contrary to the 23 Hen. 8, and there Lord Coke said obiter that the 23 H. 8
was in affirmance of the common law ; for if a man be excommunicated in a foreign
diocese, the same is void and coram non judice; as appeared by the 8 H. 6 and
2 H. 4. But this doctrine must be understood from the reference to the 23 H. 8, as
applying to the case of a citation out of the diocese. Godolphin's Repert. Canon. 635
only refers to Moor. 467 ; which is Beaumont's case, and is in these words ; Beaumont
was taken on an excommunicato capiendo; and the significavit did not mention that
he was commorant within the diocese of the bishop at the time of the excommunica-
tion, and it was adjudged uncertain, and the party discharged. Shower, 17, is
Johnson's case ; and that, as far as respects this case, is merely a reference to Moor. 467 ;
for the objection in that case was the want of an addition. With respect to the chse
in Moor. ; as the necessity of being commorant at the time of the excommunication is
not found to be so determined in any other book; and as such a doctrine would
enable defendants, by shifting their diocese pending the suit, to avoid being amenable
to the Ecclesiastical Court, [156] that case must be understood as proceeding on the
ground of the defendant's not being within the diocese at any time during the suit.
But the authority of that case may well be doubted (a)1. For in the case of The Queen
v. Dig, 11 Mod. 152, Page moved to quash a writ of excommunicato capiendo; his
first exception being to the significavit upon the excommunicato capiendo, that it did
not appear he was commorant in the diocese ; and he cited Moor. 466, 467 : he took
two other exceptions to the writ; and the report concludes with saying which
exception (namely the third) the Court seemed to allow; but no notice is taken of
the first being allowed by the Court. And in Sir T. Jones, 89, in the case of The
Inhabitants of Bermondsey, Darnel prayed that the defendants might be discharged
because it did not appear by the certificate that they were commorant in the diocese
of the bishop at the time of the excommunication ; and he relied on Moor. 467, and
Latch, 174. But the prisoners were remanded.
We are therefore of opinion, on consideration, and on the examination of all these
cases, that none of the objections are well founded, and consequently that
The rule must be discharged.
THE KING ON THE PROSECUTION OF MOORE AND WIFE, AND AND WIFE,
against WILKINSON. Wednesday, Feb. 8th, 1797. A note for groats must be
signed by all the creditors in the suit : if it be not, the defendant is entitled to
be discharged, though he has received some payments under it. [8 T. R. 25,
325. 1 N. R. 306.]
In this ejectment a verdict was taken for the plaintiff on one count, which stated
a demise by Moore and wife, subject to an award ; and the arbitrator having awarded
a sum of money to be paid by the defendant to all the lessors of the plaintiff, he was
attached for non-payment of that sum, and was in custody. He was afterwards
brought up under the Lord's Act, but was remanded on receiving a note for his groats.
signed by Moore only ; and under that note he received four payments. But
Marryat on a former day moved for his discharge, on account of this defect in the
note for the groats, saying that the note should have been signed by all the lessors of
the plaintiff; and that the application was made as soon as the defendant knew of
the objection to the note.
Best, who opposed his discharge, produced an affidavit in which it was stated that
Moore who signed the note was the only real [157] creditor and at the whole expence
of the suit. And he objected, on the authority of Linch v. Pargiter (a)2 to the defen-
dants being now discharged, after having received several payments under the note,
even if the note were informal.
The Court having some doubt on this case when the motion was made, declined
deciding it at that time: but on this day they said they were of opinion that the
defendant was entitled to his discharge; and therefore they made
The rule absolute.
(a)1 It seems to have been over-ruled in R. v. Burrard, 1 P. Wins. 435.
(a)2 Doug. 69.
7 T. R. 16.](ViewImageLocal?handle=hein.slavery/ssactsengr0016&div=1&collection=&method=preview&ext=.png&size=3)