Substituted Service. We have before seen that in cases where an injunction is sought to restrain proceedings at law by a party who is abroad, the Court will order service upon the attorney or agent of the party commencing the proceedings to be good service of the subpoena upon the client and principal (k), and that in some cases also where injunctions are not sought, the Court have permitted service upon the agent or factor of a defendant abroad, acting in respect of the property in dispute, to be good service upon the principal (7). The distinctions upon these heads have been before fully discussed and pointed out in Chap. IV. Sect. 12 of this Treatise, to which the reader is referred, as well for information upon this point as upon the remedies from time to time provided by the Legislature for the inconvenience arising from the defect of power in courts of equity to compel the appearance of parties who are either resident out of their jurisdiction, or who have absconded for the purpose of avoiding their process (m). Of contempts by the party served. SECT. VI. Of Contempts of the Subpoena. Ir upon service of this writ the defendant beat the party serving it, or use scandalous or contemptuous words against the Court or the process thereof, he thereby commits a contempt of the Court, and the defendant is liable to punishment by imprisonment (n); and it appears to have been held that if upon a copy of the writ being served, and the writ shown, the person speaks with contempt before he knew its contents, or from what Court it issued, it will be a contempt (o). Contempts of this description are called extraordinary contempts, to distinguish them from those which are incurred by the mere act of disobedience to the ordinary process of the Court. Some difference appears to exist in the practice of the Court in cases of contempts of this nature, which consist (k) Ante, p. 262. (n) 1 Newl. Prac. 67. in the mere use of scandalous or contemptuous words, and Contempts of those which consist of beating or other corporeal ill usage the Subpana. of the person serving it. It seems that where actual battery is By actual battery. proved, the offending party may be ordered to stand committed at once, upon motion, without further examination (p). In such case, however, the battery must be proved by the affidavit of two witnesses (q); and if it rests upon the evidence of one witness only, the Court will only make an order for the committal of the defendant, unless he shows cause against it within a limited time (r). Where the contempt is by abusive and scandalous words By abusive against the Court, or the process thereof, and they are proved words. by the affidavit of two witnesses, the party offending may likewise be ordered to stand committed, upon motion, without further examination (s); but where there is only the affidavit of one witness, the proper course appears to be to move for an attachment, whereupon the offending party may be brought up to be examined; and then if the misdemeanor shall be confessed, or proved against him, he shall stand committed, unless he satisfy the Court and pay the prosecutor his costs (t). In such case, also, it seems that the misdemeanor, if not admitted, must be proved by the oaths of two witnesses, otherwise he must be discharged, though his discharge will, in such case, be without costs, in respect of the oath made against him (u). SECT. VII. Of Counterfeit Subpoenas. Ir is to be observed that a counterfeit subpæna does not Counterfeit oblige, and that whosoever serves it, if he knows it, misbe (p) Beames, Ord. 204. (q) Anon. 3 Atk. 219. Vide (r) Elliot v. Halmarack, 1 Mer. 302; Van. v. Price, 1 Dick. 91; Morgan v. Jones, ibid. etiam Williams v. Johns, 2 Dick. 477; 1 Mer. 303, n, where a similar order was made, and because the defendant was of a ferocious disposition, and no one dared serve him, it was further ordered that leaving (s) Beames, Ord. 205. (u) Ibid. As to the method of Subpanas do not oblige. Counterfeit haves himself, and an attachment will go against him for the contempt which he has thereby committed (x). In Thatcher's case a clerk in Chancery was committed by the Lord Keeper for a very high misdemeanor in sending writs into the country with soft yellow wax upon them, without being sealed with the Great Seal, as if they had been actually sealed; and this was said to be a misdemeanor next to counterfeiting the seal; and he was bound in 1,000 7. himself, and two more in 500 7. each, for his appearance, in order for an information (y). Costs of the Under the old practice. Under the new orders. SECT. VIII. Of the Costs of the Subpæna. UNDER the old practice of the Court the costs of suing out a subpœna to appear and answer were 6 s. 8 d. for drawing the præcipe and leaving the same at the office (z), and 8 s. for the subpoena if sealed at a general seal, when there was one defendant or two (a), and when there were three defendants, 8 s. 6 d. If the writ was sealed at a private seal when other matters were sealed, there was an extra fee of 3 s. 6 d. charged for sealing; and if the Great Seal was opened expressly for the purpose, the charge was two guineas extra (b). But by the present practice, as regulated by Lord Brougham's orders (c), the amount to be allowed in costs for every subpæna other than a subpoena duces tecum, including the præcipe, attendance, and sum paid for sealing, is fixed at 5 s. 10 d. (d); (1) Hind. 86. (y) 12 Mod. 355; Hind. 93. (b) Ibid. 105. (c) Ord. 21 Dec. 1833; Ord 5. penny writ duty the sum of sixpence; to the chaff wax and his deputy, for their equal use, the sum of twopence, and to the sealer attached to the Great Seal and his deputy, for their equal use, the like sum of twopence; and from and after the death, resignation, or removal of the present patentee, such writs of subpana shall be sealed by the said clerk of the affidavits, who shall thenceforth receive the same sum of five shillings and sixpence, and after discharging the like fees and outgoings to the several before-mentioned officers, shall pay what may remain to the said Accountant-gene in addition to which sum the solicitor suing out the same is Costs of the to be allowed one fee of 6 s. 8d. for the præcipe and atten- Subpana. dance on such sealing, as heretofore, when the number of names included therein shall not exceed nine, and if they shall exceed nine in number, then an additional fee of 6 s. 8d.; and if they exceed eighteen, a further fee of 6 s. 8 d., and so in proportion for every additional number of nine names included in such præcipe. By the second of Lord Lyndhurst's orders (e) the costs of all subpoenas to appear are directed to be costs in the cause. ral, to be by him placed to the credit of the said account, entitled "The Suitors' Free Fund Account." (e) Ord. 3 Ap. 1828. Contempts in General. CHAP. VIII. OF PROCESS OF CONTEMPT. Ordinary contempts. Extraordinary contempts. Contempts by non-obedience to the subpana, SECT. I. Of Contempts in General. WHERE a party having been duly served with a subpœna neglects or refuses to appear, he is said to have incurred a contempt of the Court; and so he does if, having appeared, he refuses to answer or to obey any decree or order which the Court may think proper to make. Contempts of the nature above alluded to are styled ordinary contempts, or contempts in process; and as they merely relate to the transactions between party and party, the offender may purge his contempt, by doing whatever the act is, the non-performance of which has brought him into contempt, and paying to the other party whatever costs may have been occasioned by this conduct. Ordinary contempts are divisible into such as are committed by non-obedience to the subpoena, and such as are committed by non-obedience to a decree or order. The latter species of contempt will be the subject of a future Section of the Chapter upon Decrees. There is another species of contempt in which the dignity of the Court is chiefly concerned, and which cannot be purged by mere satisfaction to the party, but may be the subject of punishment by the infliction of imprisonment or fine. These are called extraordinary contempts, and are the subject of peculiar modes of proceeding, which will be pointed out in another part of this Treatise. At present the reader's attention will be drawn to the method to be adopted when a party is guilty of a contempt by non-obedience to the subpoena, which, where the |