were put in, and any former process of contempt should have issued against the defendant for want of appearing or answering, the plaintiff might resort to such process of contempt, and proceed thereupon, notwithstanding the costs of such former process were paid on the coming in of such insufficient or frivolous answer, &c.,) (c) and as it was held by the commissioners, that as it must occasion delay to an innocent party, to compel him to begin the process de novo, and that the circumstance of his accepting those costs, which the rule of the Court gave him, was anything but a satisfactory reason why he should be actually punished by being put to the inconvenience of commencing his process again, it seemed expedient to them to recommend the revival of the order of 1676, so that the plaintiff might resume the process where he left off, in cases where he should have occasion again to resort to it in consequence of the answer proving insufficient. (d) A proposition to this effect was accordingly introduced into their report, (e) in pursuance of which the 24th of Lord Lyndhurst's orders was framed, by which it was provided that where a defendant in contempt, for want of answer, obtains upon filing his answer the common order to be discharged as to his contempt, on payment or tender of the costs thereof, or the plaintiff accepts the costs without order, he shall not by such acceptance be compelled, in the event of the answer being insufficient, to recommence the process of contempt against the defendant, but shall be at liberty to take up the process at the point to which he had before proceeded. (f) If a defendant is in custody, and the plaintiff permits him to be discharged on payment of the costs of the contempt, upon his promising to put in an answer, and no answer is put in, the plaintiff must proceed by a new attachment, to sanction which a previous order appears to be necessary. (g) *But although a plaintiff does not now, by accepting the costs, [*663] from a defendant upon his putting in an answer, forfeit his right to recommence the process of contempt at the point where it left off; yet if, after answer put in, he accepts the answer, or takes a step in the cause, he waives the contempt, and cannot renew the process or take any other advantage of it. Thus, if a plaintiff moves upon an admission in the answer he waives the contempt; (h) and so where a messenger had been ordered upon a cepi corpus, and in the meantime the defendant filed his answer, which the plaintiff accepted, and then applied for his costs by motion, it was held that the acceptance of the answer precluded him from his right to costs. (i) And so where a defendant who was in contempt put in an answer without paying or tendering the costs, and the plaintiff replied to the answer, but did not proceed with the cause for three terms, whereupon the defendant moved to dismiss the bill for want of prosecution; upon the plaintiff's objecting that the defendant could not make the motion, in consequence of his being still in contempt, Lord Eldon held that the contempt was gone, and that the defendant was in a situation to make the motion. (j) In that case another question was raised whether the plaintiff, by accepting the answer, had lost his right to the costs of the contempt; but Lord Eldon, on the authority of the Register, held that by accepting the answer the plaintiff had not given up his right to the costs, as costs in the cause, but had only waived his right to enforce them by means of the process of contempt. (k) It is to be (c) This order was in conformity with a previous decision of his Lordship while Lord Keeper. Anon. 1 Ch. Ca. 238, vide etiam, Curs. Can. 226; 2 Kelynge, 5 n. (d) Chan. Rep. Expl. paper 80. (e) Ibid. prop. 39. (f) 1 R. & M. 773. (h) Hoskins v. Lloyd, 1 S. & S. 393. (j) Anon. 15; Ves. 174. (g) Anon. 1 Turn. & V. 117. (k) Vide etiam, Smith v. Blofield, 2 V. & B. 100. observed that it is only as costs in the cause that such costs can afterwards be enforced, and that where a defendant in contempt for want of an answer had put in three insufficient answers, and pending a reference of the fourth, put in a fifth answer, which was accepted by the plaintiff, upon which a motion was made that the defendant might pay the costs of the contempt, and of the four *insufficient answers, Sir Thomas Plumer, V. C., held that he could not accede to the motion. (1) [ *664 ] With respect to what may be considered as such an acceptance of an answer as will waive a contempt, it appears that if the plaintiff takes an office copy of the answer he will be held to have accepted the answer, (m) unless it be an answer coupled with a demurrer, in which case the act of the plaintiff in taking an office copy will not be a waiver of the objection, as it is the only mode in which he can ascertain whether the writing is an answer or not. (n) The above cases proceed upon the general principle that the taking of any step in a cause against a party in contempt is a waiver of that contempt by the party taking such step. For this purpose it has also, as we have seen, been held that replying to an answer is a waiver of a contempt, and so is the act of amending the bill (except in cases where the defendant is in actual custody, in which cases, as has been stated, amendments may be made under the 1 W. 4, c. 36, s. 15, rule 10; (p) or where the amendment is made, after exceptions allowed, under an order for that purpose requiring the defendant to answer the amendment and exceptions at the same time). (9) An order to discharge a defendant in custody for a contempt, upon the plain. tiff's amending his bill, where the amendment is not made under the 1 W. 4, c. 36. may be obtained ex parte, and without payment of costs. (r) It is to be observed that the step taken must, in order to have the effect of a waiver of the contempt, be in the cause itself in which the contempt has been incurred; therefore, where a plaintiff was in contempt for non-payment of some costs, the filing of a cross bill by the defendant was held not to be a waiver of the contempt by the defendant, so as to permit the [ *665 ] plaintiff to make a motion in his own cause. (s) Where any of the processes of contempt before referred to have been irregularly issued, the defendant should, by motion or petition, apply to the Court to set them aside or discharge them with costs; and we have seen that the circumstance of his being in contempt will not preclude his making such an application. (t) An application of this nature should be supported by affidavits of the circumstances, (to which the plaintiff may, if he pleases, file affidavits in answer) and the Court will frequently decide the matter upon hearing the application and (1) Const. v. Ebers, 1 Mad. 531. In the marginal note of this case it is said that it seems the plaintiff loses his costs. This must be incorrect, as the result of the case is merely that he cannot enforce the costs in question before the hearing, when they must be considered as costs in the cause. It is stated, however, in a recent publication upon the practice of the Court, that according to the settled practice, in the taxation of costs the costs of the contempt, even where there is a decree for the plaintiff with costs, will not be allowed him as costs in the cause. Vide 1 Smith, 131. (m) Sidgier v. Tyte, 11 Ves, 202; Landars v. Allen, 6 Sim. 619. (n) Curzon v. De la Zouch, 1 Swanst. 185. (p) Ante, 523. (9) Ante, 528. Gray v. Campbell, 1 R. & M. 323; Ball v. Etches, ibid. 324. affidavits. (u) The regular course, however, where the Court entertains a doubt upon the subject, is to direct a reference to the Master to inquire into the regularity of the proceeding, (v) in order that the question may be formally debated upon exceptions to the Master's report, which, it appears, may be taken for the purpose of obtaining the opinion of the Court upon the propriety of the Master's decision. (w) It seems that where a party is in actual custody, and a reference of this nature is directed, the Court has, upon his presenting a petition to that effect, permitted him in the meantime to be discharged, upon his giving security to appear and abide the order of the Court. (x) It is to be observed that the Court will not permit the regularity of its process to be decided upon by any other tribunal, (y) and therefore in Frowd v. Lawrence, (2) where a defendant who had been taken into custody upon an attachment which was irregularly issued, obtained an order to discharge the attachment with costs, and afterwards commenced an action, against the plaintiff and the sheriff, for false imprisonment, and another action against the plaintiff for maliciously suing out the attachment, Lord Eldon, upon the authority of Bailey *v. Devereux, (a) and May v. Hook, (b) made an order [ *666 ] for an injunction to restrain the defendant from proceeding with his actions at law; his Lordship, however, held that by such an injunction the Court does not intend that the persons concerned in issuing the attachment, are not to make the party satisfaction; but only that it should not be done by an action at law, because it is impossible, from the nature of the thing, that they can try the regularity of an attachment in a court of law;" his Lordship therefore ordered that the injunction should be without prejudice to any application that the defendant might be advised to make for compensation or the costs of law. The same principle was afterwards acted upon by Lord Lyndhurst, ex parte Clarke. (c) It is to be remarked that in Holt v. Holt, (d) (where the irregularity in the process had been occasioned by one of the Registrars of the Court not entering the attachment, although he or his agent had received the usual fee for so doing,) the Court ordered the Master to tax the defendant's costs out of pocket, and directed that they should be paid by the plaintiff, who was reported to have been guilty of the irregularity, but that they should be paid over to the plaintiff by the Registrar; after this the Registrar died, and the costs having been taxed at 587. the matter came on again upon petition, when the administratrix of the Registrar offered to pay the amount out of his assets, the Court being of opinion that as the Registrar had received his fee, his omitting to enter the attachment was a breach of contract and not a mere personal neglect; but as the Court would not allow such a matter to be examined by any other Court in an action, it made an order, in a summary way, for payment, by the administratrix, out of the Registrar's assets, and there being no one in Court to admit assets for her, it was ordered that she should be examined as to assets. If a party wishes to discharge a process for irregularity, he must make his application before he complies with it, otherwise he will be considered as waiving the irregularity, (e) thus where a defendant has been taken upon process of (u) In such cases the Court frequently applies to the Registrar, or to the Six Clerks, or clerks in Court for their opinion upon the point, and acts upon their opinion. (v) James v. Philips, 2 P. Wms. 657; Curzon v. De la Zouch, 1 Swanst. 185. (w) Broomhead v. Smith, 8 Ves. 357. (y) Holt v. Holt, 2 P. Wms. 657. (a) 1 Vern. 269. (c) 1 M. & K. 563. (x) Ibid. (z) 1 J. & W. 655. (b) 1 Dick. 619. (d) Ubi supra. Anon. 3 Atk. 567; Floyd v. Nangle, 3 Átk. 569; Bound v. Wells, 3 Mad. 434; Robinson v. Nash, 1 Anst. 76. *contempt for non-appearance, he must not enter his appearance in [ *667 ] the ordinary way, otherwise his appearance will cure the defect. But although a defendant, against whom an attachment has been issued for a contempt by not appearing, must not, if he means to object to the service of the subpoena, put in his appearance in the usual way, he must nevertheless submit himself to the jurisdiction of the Court in such a manner that, if his objection is held invalid, the plaintiff shall not be deprived of the benefit of his process; the Court therefore requires that before moving to discharge the attachment, he should enter his appearance with the Register, the effect of which is to enable the plaintiff, in case the Court should decide that the process has been regularly issued, to send the sergeant-at-arms at once against him without any intervening proceeding. (f) It is to be observed that a subsequent appearance by a party, cannot be construed to have relation back, so as to bring him into contempt for disobeying a writ or other process issued before his waiver of the informality had made the process valid against him, and therefore where an attachment was issued against a defendant for non-appearance to a subpoena which had been issued against him, and in which he was described in a wrong name, it was held by the Court of Exchequer that his appearance for the purpose of discharging the attachment would not relate back so as to cure the defect in the subpoena, and bring him into contempt for not appearing in time. (g) It should be noticed also that the principle of waiver applies only to an irregular and not to an erroneous order, and therefore where an order had been made that service of a subpoena upon the attorney should be good service, and the subpana was accordingly served, upon which the attorney entered an appearance; but it was found, afterwards, that the affidavit upon which the order for substituted service had been made was insufficient, whereupon the defendant moved to set aside that order and all the subsequent proceedings, the Vice Chancellor, Sir J. Leach, made the order, on the ground that the original *order was erroneous and not irregular, and that being erroneous the defect was not cured by the subsequent appearance of the party [ *668 ] to the subpoena. (h) SECTION XII. Rules to be observed under the 1 Will. 4, c. 36, with regard to Prisoners in Custody. As many important alterations have been introduced into the practice with regard to prisoners in actual custody for contempts in not obeying the process of the Court by the stat. 1 W. 4, c. 36, commonly called Sir Edward Sugden's Act, it is conceived that a succinct statement of the provisions of that Act, as far as they relate to prisoners, will not be inappropriate in this place. The first section of the Act which is applicable to this subject, is the second, by which it is enacted that the Warden of the Fleet prison shall keep a register of the names of all persons committed by Courts of Equity for contempts, stating the days and grounds of their several commitments, and the dates of the respective discharges, and shall on the twentieth days of the months of January, April, July and October in each year, make a report to the Lord (f) Vide post, chap. X. (h) Levi v. Ward, 1 S. & S. 334. (g) Robinson v. Nash, 1 Anst. 76. Chancellor of the names and descriptions of such prisoners in his custody on each of such days respectively, with the causes and dates of their respective commitments. The next nine sections of the Act re-enact (with some slight modifications) the clauses 5 Geo. 2, c. 25, as to taking bills pro confesso against defendants who abscond, &c., which the first section had repealed, and the twelfth, thirteenth and fourteenth sections re-enact the substance of the 45 Geo. 3, c. 124. which authorized the putting in appearances for defendants having privilege of Parliament, and made provision for taking the bill pro confess0 [ *669] against them. Then follows the fifteenth section, which provides certain rules and regulations for the purpose of remedying the practice of Courts of Equity, in regard to process of contempt and the taking bills pro confesso, and which it is directed are to become orders and regulations of the Court of Chancery, and to be observed and enforced in and by the said Court. The first four of these rules relate to the shortening of the process, which is to be gone through before a plaintiff can be in a situation to take the bill pro confesso, and will be explained in the next chapter. The fifth rule, which more immediately relates to the subject of the present section, directs, that where a defendant under process of contempt for not appearing or not answering, is actually in jail or prison, and shall not have been sooner brought to the bar to answer his contempt, the plaintiff, if the contempt be not sooner cleared, must bring the defendant to the bar of the Court by habeas corpus within thirty days from the time of his being actually in custody, or from the time of his being charged with the contempt, (unless the last of such thirty days shall happen to be out of Term, in which case the defendant must be brought to the bar within the first four days of the ensuing Term,) otherwise the sheriff, jailer, &c. in whose custody the defendant is, must discharge him out of custody, without payment by him of the costs of the contempt, which are to be payable by the party on whose behalf the process issued. By the same rule similar provision is made for bringing the defendant to the bar within a certain period, in cases where he has not been committed to jail, but has been taken into custody by a messenger or by the sergeant-at-arms. (i) The object of introducing this rule into the Act was, as has been before observed, to remedy the evil, which was too often felt, in consequence of a plaintiff having it in his power to take a party, upon process of contempt, and lodge him in jail without there being any obligation upon the person sending him there ever afterwards to take the slightest notice of him. (k) Under the above rule, therefore, the plaintiff must, if he *wishes [ *670 ] to detain a prisoner in custody for any of the purposes for which such detainer is allowed, bring him up to the bar of the Court within the time thereby limited, or else he will lose the benefit of the process, and moreover be liable to pay all the costs which have been incurred by it. The Act having provided for the defendant being brought to the bar of the Court within a certain period after his arrest, next proceeds to make provision for enabling him to put in an answer to the bill without expense, in cases where he is unable from poverty to bear the expense of so doing. For this purpose, the sixth rule directs, that if a defendant upon being brought before the Court upon an habeas corpus, shall make oath (which shall be administered to him by the Registrar, and he is to be examined in open Court,) that he is unable, by reason of poverty, to employ a solicitor to put in his answer, the Court must, thereupon, refer it to a Master in rotation to inquire into the truth of that allegation, and to report thereon to the Court forthwith, and thereupon |