Beaurain, Gent, v Right Hon Sir W. Scott
| Jurisdiction | England & Wales |
| Judgment Date | 06 March 1813 |
| Date | 06 March 1813 |
| Court | High Court |
English Reports Citation: 170 E.R. 1420
IN THE COURTS OF KING'S BENCH AND COMMON PLEAS
Considered, Wood v Wood, 1874, L R 9 Ex 190
[388] Saturday, March 6, 1813. beaurain, gent , v right Hox sir W. scott (An action on the case may be maintained against a Judge of the Ecclesiastical Court who excommunicates a party for refusing to obey an order which the Court has not authority to make, or where the party has not been previously served with a citation or monition, nor had due notice of the order. The practice of the Ecclesiastical Court is matter of fact to be proved by evidence, and left to the jury.) [Considered, Wood v Wood, 1874, L R 9 Ex 190 ] This was an action 011 the case, for unlawfully excommunicating the plaintiff. The declaration stated that, at the time of committing the grievance complained of, the defendant was Vicar General and Official Principal of the Consistonal and Episcopal Court of Beilby. by divine permission then Lord Bishop of London , that the plaintiff was a person of good fame, and a practising attorney ; that a cause of separation from bed and board and mutual cohabitation was then depending in the said Court, in which a minor son of the plaintiff was cited to appear before the defendant, to answer Anne Beauram his lawful wife in the said cause, but to which the plaintiff was no party ; yet that the defendant required the plaintiff to take upon himself the burthen of guardian to his said infant son, and appear in such suit as guardian ad litem ; which burthen the plaintiff wholly refused to take upon himself, as he lawfully might; that the defendant afterwards signed with his name and published a certain instrument, purporting to be a schedule of excommunication ; by which said instrument the said defendant, as Vicar General of the said Bishop of London, and Official Principal of his Consistonal and Episcopal Court, pretending to be armed with legal authority, and pretending that justice so required, * Where, however, the default, of which the freighter complains, does not go to the whole consideration for his contract, and he has derived some benefit from the use of the ship, the covenant broken on the part of the shipowner is not to be considered as a condition precedent, but as a distinct covenant, for the breach of whioi the party injured may be compensated in damages. Therefore, if the voyage has been performed, it is no defence to an action for the stipulated freight, to shew...
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