tration nisi for want of an answer against a member of Par Sequestration. liament, and he puts in an answer before the order is made absolute; and exceptions are taken to this answer, the Court will enlarge the time for showing cause till it shall appear whether the answer is sufficient or not (r).re adfar as gevz When the order for making the sequestration absolute sis Order for, how drawn up, passed and entered, the plaintiff's clerk in Court made absolute. will make out the sequestration, the order being left with him, and this sequestration the Court will not discharge till thes party has appeared and paid the costs of the process; and then he may move to discharge the sequestration, upon notice to the adverse party if it be executed, which will be granted of course. »! (1 £ ¥*{tI Personal service of the order nisi may be dispensed withy in cases where a peer, &c. keeps within his own house, or is sur rounded by his servants to avoid service, or where the party serving the process is denied access, and it is very difficult and almost impossible to serve the order personally. But in order to enable the plaintiff to dispense with personal: service, it is necessary to apply to the Court to substitute a service by leaving, in lieu of it, grounding such application upon a pros per affidavit of the particular circumstances of the case, upon which the Court will exercise a discretion, and make the order, if the facts stated in the affidavit are strong enough to warrant such a proceeding(s). Where a peer defendant avoided the service of an order nisi for a sequestration, the Court of Exchequer made an order that service thereof upon his clerk in Court, and at his dwell ing-house, or if no person should be met with there, by fixing a copy of the order on the door, should be good service (t). (r) Butler v. Rashfield, 3 Atk. 740. From the observation of the reporter appended to this case, it may be inferred that upon the authority of what the Registrar had said in Lord Clifford's case, Lord Hardwicke had allowed the cause shown, as being the course of the Court; but upon reference to the Registrar's book, where the order is entered under the title of Buller v. Rashleigh, it appears that the time for showing cause was enlarged till the next seal. Reg. Lib. 1750, A. 495. (b). of to Powis, Scacc. 19, May Personal service of order nisi dispensed with. འ ? Sequestration against Officers of the Court. Proceeding against an officer of the Court Form of the sequestration; in what manner issued. Appearances may be put in for defendants having privilege of Parliament on return of pro cess of sequestration. In Thomas v. Lord Jersey (u), a bill was filed against Lord Jersey, upon which a letter missive, with a copy of the bill, was served on the defendant, by leaving it with one of his female servants at his residence in Berkeley-square. His Lordship was then abroad, having left England for the Continent a few months preceding. On his neglecting to appear to the letter missive, a subpœna was served in the same way, and upon his non-appearance to that, an order nisi for a sequestration was issued, when, upon inquiry at his Lordship's house, it appeared that he was still on the Continent, and thereupon, on an affidavit being made of these facts, the ViceChancellor directed that service of the sequestration nisi at his Lordship's house should be good service; and upon a subsequent motion to discharge the Vice-Chancellor's order, the Lord Chancellor, Lord Brougham, refused the motion (x). The same course of proceeding in suing out and issuing the sequestration is observed where it is sought against an officer of the Court as in the case of peers, with the exception that the affidavit upon which the order nisi is applied for must be confined to the service of the subpoena, there being no letter missive as in the case of a peer, &c. 1 312 The form of the sequestration issued against peers and other privileged persons is nearly the same as that issued in cases of contempt by ordinary persons, with the exception that it recites the order nisi, and the order for making it absolute. The manner of issuing and executing it, and the consequences arising from it, are similar to those of ordinary sequestrations, as detailed in the preceding Section. By the statute 1 Will. 4, c. 36, s. 12, after reciting that in many cases persons having privilege of arliament are named as defendants in suits instituted in Courts of Equity against them, either alone or jointly with other persons, for enforcing against them demands and duties cognizable in Courts of Equity, and that in some cases such defendants having privilege of Parliament, have stood out to the return of process of sequestration issued against them for enforcing appearance, and such process of sequestration hath not been found sufficient to enforce such appearance, it is therefore enacted, that (u) 2 M. & K. 398. () Vide Attorney-general v. Earl of Stamford, 2 Dick. 744. from and after the passing of the Act, in case any defendant Sequestration. having privilege of Parliament shall upon a return of process of sequestration issued against him for not putting in an appearance to any original or other bill of complaint instituted against him in a Court of Equity for enforcing discovery and relief, or discovery alone (as the case may be), neglect to appear, that then and in such case such Court, upon producing the return of such sequestration in Court, may, on the motion or other application of the plaintiff in such cause, appoint a clerk in Court to enter an appearance for such defendant so having privilege of Parliament, and such proceedings may thereupon be had in the cause as if the party had actually appeared (y). SECT. X. Of the Effect of a Contempt upon the Proceedings in the Cause. BESIDES the personal and pecuniary inconvenience to which a party subjects himself by a contempt of the ordinary process of the Court, he places himself in this further predicament, viz., that of not being in a situation to be heard in any application which he may be desirous of making to the Court. Lord Chief Baron Gilbert lays it down, that "upon this head it is to be observed, as a general rule, that the contemner, who is in contempt, is never to be heard, by motion or otherwise, till he has cleared his contempt, and paid the costs: as, for example, if he comes to move for anything, or desires any favour of the Court, if the other side says or insists that he is in contempt, though it is but an attachment for want of an answer, he is not entitled to be heard till he hath paid the costs (however small they are); he must first pay them to the party or his clerk in Court, and produce a receipt for them in open Court, before he can be heard; and this is always allowed as good cause against hearing of the contemner in any case (y) For the process of taking bills pro confesso against privileged per sons under this Act, vide post, Party in contempt cannot make any application to the Court. Contemner pre- whatsoever" (z). cluded from applying to the Court. Cannot move for a reference under 7 Geo. 3, c. 20, in case of foreclosure; nor have the costs of an abandoned motion. Rule applies only to proceedings in the same cause; and does not prevent party applying to dis Upon this principle, it is held that where defendants are in contempt for want of an answer, and an injunction has been granted till answer, they cannot, before the answer is put in, be in a situation to make any application to the Court, either to cut down or to dissolve the injunction (a). And so in Lord Wenman v. Osbaldiston (b), where a defendant, being in contempt for not putting in his examination pursuant to an order, in order to avoid a sequestration, moved the Court that upon his undertaking to pay in a week's time what should appear to be due to the plaintiff, all further process of contempt should be stayed, the Court declined making any order upon the motion, but directed the appellant to clear his contempt, and then move. And this determination of the Court was affirmed by the House of Lords upon appeal. In like manner it has been held, that a mortgagee, defendant to a bill of foreclosure, who is in contempt, cannot move under the 7 Geo. 3, c. 20, for a reference to the Master to take an account of the principal, interest, &c. due upon the mortgage (c). And so where a party in contempt had applied for and obtained the costs of an abandoned motion under Lord Eldon's order, the Vice-Chancellor, upon motion, discharged the order (d). It is be observed, however, that the rule, that a party cannot move till he has cleared his contempt, is confined to proceedings in the same cause, and that a party in contempt for nonobedience to an order in one cause will not be, thereby, prevented from making an application to the Court in another cause relating to a distinct matter, although the parties to such other cause may be the same (e). And although it is the general rule of the Court that parties must clear their contempt before they can be heard, yet the charge the order rule must not be understood as preventing their making application to the Court to discharge the order, by their nonobedience to which their contempt has been incurred, on the upon which he is in contempt for irregularity; In preventing Party from being heard. mix up other matters with his application. ground of irregularity. Therefore, where a defendant in custody for a contempt in not obeying an order to pay in money, applied to the Court to discharge him out of custody, on the ground of irregularity in the order (it having been made pending an abatement of the suit), he was not only heard, but he must not but the order for his discharge was made, though, under the circumstances, without costs (e). In such cases, it is to be observed, that in making his application, the party in contempt ought to confine his motion to the object of getting rid of the order of which he complains, and that if he embraces other matters in his notice, he will not be allowed to go into such other matters till he has shown that the order, upon which his contempt has been incurred, was irregular. Upon this principle, as the defendant in the above case, in his application to the Court to discharge the order upon which his contempt was incurred, included in his notice of motion the discharge of several subsequent orders upon which he had likewise incurred further contempts, Lord Cottenham was of opinion that he ought, in the first instance, to be confined to that part of his notice of motion which asked the discharge of the order upon which his first contempt was incurred, and upon his failure in inducing the Court to discharge that order, his Lordship refused to hear the residue of the motion (ƒ). heard in oppo sition to a special application against him. It is also to be observed, that the circumstance of a party Party in conbeing in contempt will not prevent his being heard in oppo- tempt may be sition to any special application which the other side may make, upon notice duly served upon him. And where a plaintiff had obtained, from the Vice-Chancellor, an order against a defendant who was in contempt for payment of a sum of money into Court, the Lord Chancellor allowed him to move to discharge that order, on the ground that it was a rehearing of the original application (g). may move to discharge an order by way of appeal. We have seen before (h), on the authority of Lord Chief. Whether party Baron Gilbert, that under the old practice of the Court, a de- in contempt can fendant, in contempt to an ordinary attachment, could plead to demur. (e) Wilson v. Metcalfe, MSS. (ƒ) Ibid. (g) Parker v. Dawson, Law. Journ. 1836, 108.. (h) Ante, p. 608, 609. VOL. I. UU |