NOTES.

SPECIAL CONTEMPTS.

In cases of special contempt it has been held that the order for committal should contain an adjudication of the contempt, and a declaration of the guilt of the party, see Exp. Van Sandau, 1 Ph. 445, 605; but such adjudication is not essential: S. C., et v. inf. Chap. XXXI., INJUNCTIONS," S. xxii.

For contempt of subpoena, and assault on the party serving it, if established by two witnesses, the order to commit was absolute: if by one witness only, nisi: Elliot v. Halmarack, 1 Mer. 302; Van v. Price, 1 Dick. 91; and the course is the same where the contempt is for violence or abusive or scandalous words against the Court or the process thereof: see Re Johnson, 36 W. R. 51.

The power of the Court to commit to prison for contempt of Court is not affected by the Debtors Act, 1869: Harvey v. Hall, 11 Eq. 31; except in cases when the contempt consists in default of payment of money: Esdaile v. Visser, 13 Ch. D. 421, C. A.; Micklethwaite v. Fletcher, 27 W. R. 793; Tiiney v. Stamfield, 28 W. R. 582.

As to when proceedings should be by way of committal, and when by way of attachment, see Memorandum of Mr. Lavie, Registrar, note to Re Evans, E. v. Noton, (1893) 1 Ch. 259 et seq.; D. v. A. & Co., (1900) 1 Ch. 484; Oswald on Contempt, pp. 239–245.

To publish, with or without comments, the statement of claim, pleadings, or evidence in any pending action or matter, or any ex parte or defamatory statement tending to prejudice the minds of the public against persons concerned as parties, or to prevent a fair trial, before the action, &c. is finally heard, is a contempt of Court which will be restrained by injunction (see inf. Chap. XXXI., "INJUNCTIONS," s. xi.), and may be punished by imprisonment or fine: Tichborne v. Mostyn, 7 Eq. 55, n.; Daw v. Eley, Ib. 49; Re Cheltenham and Swansea Wagon Co., 8 Eq. 580; Bowden v. Russell, W. N. (77) 55; Gen. Exch. Bk. v. Horner, W. N. (68) 259; Roach v. Garvan, 2 Dick. 794; S. C., 2 Atk. 469; Re Crown Bank, Ld., 44 Ch. D. 649; and such a contempt is of a "criminal" nature within sect. 47 of the Jud. Act, 1873, so that there is no appeal: O'Shea v. O'Shea, 15 P. D. 59, C. A.

Secus, pending a winding-up petition, the issue, and distribution amongst the shareholders, of a circular stating the charges against the directors on which the petition was based: Re London Flour Co., 16 W. R. 474; and pending an action for infringing a trade mark, the Plts are at liberty to warn the trade by circular, but to introduce discussion of the merits of the action is a contempt: Coates v. Chadwick, (1894) 1 Ch. 347; and innocently lending a newspaper containing scandalous matter is not such a publication as to amount to a contempt: McLeod v. St. Aubyn, (1899) A. C. 549, P. C.

So, also, it is a contempt to address public meetings, and allege that a Deft, against whom a true bill has been found, is innocent and the victim of a conspiracy: Onslow and Whalley's Case, L. R. 9 Q. B. 219; or to advertise the intended delivery of a sermon "with special reference to the trial in which the town is so deeply interested": Mackett v. Herne Bay Commrs, 24 W. R. 845; or prematurely to publish reports of an examination under the Companies Act, 1862, s. 115: American Exchange v. Gillig, 58 L. J. Ch. 706.

The Court refused to commit a Deft who published an accurate account of what passed in Court, and who had undertaken not to publish trade "cautions": Buenos Ayres Gas Co. v. Wilde, 29 W. R. 43; or where reports of proceedings in camera in reference to a ward constituted a contempt which was not serious and was unintentional: Re Martindale, (1894) 3 Ch. 193; or where articles in a newspaper which referred to a pending prosecution were not intended or calculated to prejudice the fair trial of the charges: Reg. v. Payne and Cooper, (1896) 1 Q. B. 577; and motions to commit the publishers of newspapers who have inadvertently been guilty of a mere technical contempt, may be treated as vexatious and an abuse of the process of the Court: S. C.

Contempt of Court may be committed by publication of scandalous matter respecting the Court after adjudication as well as pending a case before it. In this country (as distinguished from the colonies) committals for such contempts are rarely resorted to: McLeod v. St. Aubyn, (1899) A. C. 549, P. C.; but the summary jurisdiction will still be exercised in the case of

scurrilous personal abuse of a Judge: Reg. v. Gray, (1900) 2 Q. B. 36; 69 L. J. Q. B. 502.

Sending letters threatening exposure, using intimidating language, or publication of articles in a newspaper calculated to deter parties from prosecuting their action, or to prevent witnesses from coming forward to give their evidence, is also a contempt of Court: Smith v. Lukeman, 2 Jur. N. S. 1202; Exp. Chetwynd, 10 Jur. N. S. 1188; Shaw v. S., 2 Sw. & Tr. 517; Re Tyrone Election Petn., I. R. 7 C. L. 242; Welby v. Still, 66 L. T. 523; or slander of title of the business carried on by a receiver and manager appointed by the Court: Helmore v. Smith, 35 Ch. D. 449, C. A.; or to publish an advertisement offering a reward for evidence in terms tending to prejudice and discredit a petitioner for divorce: Butler v. B., 13 P. D. 73; or denying charges in divorce petition, and offering reward for information which would lead to the conviction of their authors: Brodribb v. B., 11 P. D. 66; but to advertise for witnesses is not per se a contempt: Plating Co. v. Farquharson, 17 Ch. D. 49, C. A. (per Jessel, M. R., questioning Pool v. Sacheverel, 1 P. Wms. 675); nor advertisements, pending appeal in a patent case, for funds, on the ground that it was of general interest to the trade, and offering reward for evidence of anticipations: S. C.; and see Re New Gold Coast Co., (1901) 1 Ch. 860.

A Plt was committed for endeavouring to intimidate a witness, and to deter the Deft from calling a witness: Bromilow v. Phillips, 40 W. R. 220; but the Court declined to order payment of costs as between solr and client: Ib. It is not of course that the contemnor in such a case should be ordered to pay costs as between solr and client: Bromilow v. Phillips, 40 W. R. 220: Welby v. Still, sup.

After verdict, leave having been reserved to move for a non-suit or new trial on technical grounds, an action is not still pending so as to make the publication of any comments thereon a contempt: Metzler v. Gounod, 30 L. T. 264.

Defiant disobedience of a Judge in the legitimate exercise of his jurisdiction may be punished by immediate committal: Watt v. Ligertwood, L. R. 2 H. L. Sc. 361; as also violent conduct and abusive language to a person engaged in serving the process of the Court: Price v. Hutchinson, 9 Eq. 534.

Addressing a contemptuous letter to a Judge reflecting upon, or tending to interfere with, the administration of justice in his Court, is a contempt, which in the case of a solr, as an officer of the Court, renders him liable to be struck off the roll, or to suspension from practice: see Re Keane, inf. Chap. XL., "SOLICITORS"; though not punishable by this extraordinary penalty if the letter is written by the practitioner not as an officer of the Court, but in his capacity as a suitor: Re Wallace, L. R. 1 P. C. 283.

An action for libel against the author of a pamphlet which was published pending a motion for new trial of an action for false imprisonment, and severely censured the proceedings and course of trial in such action, is not a bar to a motion by the Plt to commit for contempt of Court in publishing the pamphlet: Corkery v. Hickson, I. R. 10 C. L. 174.

The warrant may be for absolute committal, and not necessarily until a fine be paid: Reg. v. Jordan, W. N. (88) 152; 36 W. R. 796.

Though a party be in contempt, he may move to discharge an adverse order: Futvoje v. Kennard, 2 Giff. 110, 533; or may take any steps necessary for his defence: Fry v. Ernest, 12 W. R. 97; 9 Jur. N. S. 1151.

As to contempt in cases of interference, or marriage without leave of the Court, with a ward, see inf. Chap. XXXVIII., “INFANTS."

As to the necessity of proving scienter, see Lake v. Metropolitan Music Hall Co., 58 L. J. Ch. 513, where an application for committal in respect of comments in a newspaper on the subject-matter of an action was refused, in the absence of proof that the alleged contemnor knew of the existence of the action.

For a case in which counsel was ordered to pay costs, and committed for obstructing the course of justice by conniving at a fraud on the Court, see Linwood v. Andrews, 58 L. T. 612; W. N. (88) 81; Dan. 715.

PRIVILEGE FROM ARREST.

Although a peer or M. P. is not liable in ordinary cases to be attached or

proceeded against by any civil process involving personal arrest (see D. Newcastle v. Morris, L. R. 4 H. L. 661), this privilege of Parliament is no protection against arrest for a contempt of a gross or criminal nature: Onslow and Whalley's case, L. R. 9 Q. B. 219; Wellesley v. D. Beaufort; Lechmere Charlton's case, sup. p. 465; or for breach of an order against a receiver to pay money into Court: Re Gent, Gent-Davis v. Harris, 40 Ch. D. 190.

The privilege extends for forty days before and after prorogation or dissolution of Parliament, and although, after dissolution, the member is not re-elected: Re Anglo-French Co-operative Society, 14 Ch. D. 533.

Officers and attendants upon the Court, suitors and witnesses, have privilege eundo, redeundo, et morando for their necessary attendance, but not otherwise; and the arrest of any of them at such times of necessary attendance is a contempt of Court.

This privilege from arrest extends to witnesses and jurymen: see Gibbs v. Phillipson, 1 Russ. & My. 19; to parties to an action: Andrews v. Walton, 1 Mac. & G. 380; Plomer v. Macdonough, 1 D. & S. 232; to prosecutors, and also to accused persons admitted to bail and attending on their recognizances: Gilpin v. Cohen, L. R. 4 Ex. 131.

A solr is privileged from arrest in, and on his way to or from, Court or Judge's Chambers on business of his client: Dodd v. Holbrook, 11 Jur. N. S. 969; 12 Jur. N. S. 19; Re Jewitt, 33 Beav. 959; Eyre v. Barrow, 6 W. B. 767; and see Cordery, Solrs. 236–239; and a barrister is entitled to the same privilege: Anon., 1 Y. & C. Ex. 331.

But the privilege does not extend to arrest for disobedience to an order of a punitive and disciplinary character: Re Freston, 11 Q. B. D. 545, C. A.; and see Re Dudley, 12 Q. B. D. 44, C. A.; Hobern v. Fowler, 62 L. J. Q. B. 49.

A bankrupt is privileged from arrest under an attachment for debt issued pending the proceedings in bankruptcy: Cobham v. Dalton, 10 Ch. 665; and see Re Deere, 10 Ch. 650; secus, where the solr is a defaulting trustee, and so amenable to the disciplinary jurisdiction of the Court under the Debtors Act, 1869, s. 4: Re Smith, Hands v. Andrews, (1893) 2 Ch. 1, C. A.; Re Edye, W. N. (91) 1; 63 L. T. 762; 39 W. R. 198.

But a person who has been attached and committed to prison under the Debtors Act, s. 4 (3) or (4), does not by subsequent adjudication of bankruptcy acquire privilege from arrest, or become entitled to his discharge from prison: E. Lewes v. Barnett, 6 Ch. D. 252.

6. Committal for Trial for Perjury.

UPON the trial of this action on the day of—, and this day before the Court, and upon reading an affidavit of the Plt, filed &c., and the Plt and W. A. having been duly sworn, and upon hearing the evidence of the Plt in his own behalf, and the evidence of the said W. A. on behalf of the Defts, taken upon their respective oral examinations, this Court being of opinion that the Plt has been guilty of wilful and corrupt perjury in his evidence given as aforesaid before this Court, and that there is a reasonable cause for the prosecution of the Plt for perjury, doth order that the Plt [name] be prosecuted for such perjury and be committed until the next session of oyer and terminer or gaol delivery for the county of M.; And this Court doth require the Deft [name] to enter into a recognizance, conditioned to prosecute, or give evidence against, the said Plt.-S. v. W., V.-C. B., 19 Feb. 1877, B. 207.

7. Recognizance by Person directed to prosecute.

You [insert the name or names, and if more than one add, and each of you] shall acknowledge yourself [yourselves and each of you] to

owe to our Sovereign Lady the Queen the sum of one hundred pounds [each] of good and lawful money of G. B., to be made and levied of your goods and chattels, lands, and tenements to the use of our said Lady the Queen, her heirs and successors; the condition of the recognizance being that if you shall appear at the next session of the Central Criminal Court to be holden in the City of London, and there prefer, or cause to be preferred, a bill of indictment for the offence of perjury against one [name], and there also duly prosecute such indictment, then this recognizance to be void, or else to stand in full force and virtue. Question.-Are you contented to be so bound? Answer.— I am.-S. v. W., sup.

This is to be read by the registrar; and the obligee is not required to sign any document.

8. Record of the Recognizance to prosecute.

Be it remembered that on the day of, X. &c., of [name &c.], personally came before me [name and title of Judge], and acknowledged himself [themselves and each of them] to owe to our Sovereign Lady the Queen the sum of £100 [each] of good and lawful money of G. B., to be made and levied of his [or their] goods and chattels, lands and tenements, to the use of our said Lady the Queen, her heirs and successors, if he [or they] the said [name] shall fail in the condition indorsed. Taken and acknowledged the day and year first above mentioned at Lincoln's Inn, in the county of M.

By the Court,

Before me,

(Signed)

J.

(Signed and sealed),

Registrar.

THE Condition of the within written recognizance is such that whereas one [name] was on the day of, by virtue of an Act passed in the 14 & 15 V. intituled "An Act for further improving the administration of criminal justice" directed by &c. [name and title of Judge] to be prosecuted for perjury at the next session of the Central Criminal Court, if therefore he the said [name] shall appear at the next session of the Central Criminal Court, and there prefer or cause to be preferred a bill of indictment for the offence aforesaid against the said [name], and there also duly prosecute such indictment, then the said recognizance to be void, or else to stand in full force and virtue.-S. v. W., sup.

The recognizance is engrossed on parchment and sent to the chief clerk at the Old Bailey.

9. Certificate signed by the Judge after the Prosecutor has been bound to enter into a Recognizance.

I [name and title of Judge] do hereby certify that it appears to me that the (Plt) [name] has been guilty of wilful and corrupt perjury in his evidence given orally (and by affidavit) before this Court on the trial of this action, and that there is reasonable cause for the prosecution of the said (Plt) for such perjury, and that I have directed the said (Plt) to be prosecuted for such perjury, and have committed him until the next session of oyer and terminer, or gaol delivery for the county of M.; and I have required the (Deft) [name] to enter into a recognizance conditioned to prosecute or give evidence against the said accordingly.-S. v. W., V.-C. B., 19 Feb. 1877.

(Signed)

J.

This certificate is given to the prosecutor under 14 & 15 V. c. 100, so as to entitle him to costs.

10. Appointment of Usher to take Person into Custody in absence of

Tipstaff.

I [name and title of Judge] do appoint [name] one of the ushers of my Court to execute the orders made by me in the action of &c., on this day directing that [name] do stand committed to — prison.

---

Dated &c.,

(Signed)-,

J.

A prisoner committed for perjury should be sent to Holloway Prison. In the Q. B. Division, when a Deft is committed for contempt, a memorandum headed in the action in the following terms is signed by the Master: "The Deft C. D. is, for contempt in disobeying an injunction made in this action by Mr. Justice, on the day of committed to the custody of the keeper of Her Majesty's gaol at Holloway, to be kept in safe custody until the further order of this Court." This is handed to the tipstaff, who leaves the same with the keeper. On the following day the order is drawn up, and a copy sent to the keeper.

NOTES.

COMMITTAL AND PROSECUTION FOR PERJURY.

By the Criminal Procedure Act, 1851 (14 & 15 V.), c. 100, s. 19, the Judges or a Judge of the Superior Courts of Law and Equity, and other judicial persons, are empowered, in case it shall appear to him or them that any person has been guilty of wilful and corrupt perjury, in any evidence given, or in any affidavit, deposition, or examination, answer, or other proceeding, made or taken before him or them, to direct such person to be prosecuted for such perjury, in case there shall appear to him or them a reasonable cause for such prosecution; and to commit such person so directed to be prosecuted until the next session of oyer and terminer or gaol delivery for the county or other district within which such perjury was committed, unless such person shall enter into a recognizance, with one or more sufficient surety or sureties, conditioned for the appearance of such person at such next session of oyer