1846. CHUCK V. CREMER. The plaintiff gave a notice of motion, and filed affidavits in support: but neglecting to instruct counsel, in due time, the defendant applied under the General Order of the 5th of August, 1818 (a), and obtained the costs of an abandoned motion, to be taxed by the Master. At this time the defendant was in contempt for want of an answer, and a motion was made upon that ground to discharge the order, which gave to him the costs of the abandoned motion. The Court said, that the application for the costs of the abandoned motion was virtually the same thing motion. as a motion; and as the rule was that a party in contempt could not in general take any aggressive proceeding, the order made upon that application must be discharged. Ellice v. Walmsley, V. C. Jan. 1835. costs of an abandoned Distinction, where irregular order obtained prior, and where obtained subse quent, to the contempt. The defendant was for some reason in contempt, and the plain- Barker v. tiff having obtained an order that he should pay money into Dawson. court, the defendant moved that such order might be discharged for irregularity, when the plaintiff objected that the defendant being in contempt could not be heard. Lord Cottenham said the rule never had been, that where an irregular order was obtained against a defendant in contempt, the defendant must clear his contempt before he could come to get rid of that irregular order. That there was a wide distinction between a case where the order alleged to be irregular was obtained prior to the contempt, and where it was obtained subsequent to the contempt. That where it was obtained prior to the contempt, and was not the order which placed the party in contempt, the rule was that the contempt must be cleared before the party could make any application to the Court. But he never would extend the rule to a case where the order, sought to be set aside on the ground of irregularity, was made subsequently to the contempt. That such an extension of the rule would place the party in contempt too much at the mercy of his adversary. Barker v. Dawson, L. C. Jan. 1836. Parry v. You cannot, being in contempt, be heard here upon other matters. That is the general rule, to which there are some exceptions. One exception is, where the party in contempt is merely party in conprotecting himself. He may be heard to that extent, and no tempt is merely further. But there is nothing to prevent your taking what steps protecting him (c) See Beav. Ord. 3. f 1846. CHUCK V. you please, if your object be confined to getting rid of whatever has placed you in contempt. Parry v. Perryman, M. R. July, 1838. Needham v. Needham. Motion, under the circumstances, dismissed with costs; the de- motion. This was a motion on the part of the defendant by way of appeal to discharge orders of the Vice-Chancellor of England and Vice-Chancellor Wigram. Upon the motion coming on to be heard, it was objected that a similar motion had been refused with costs, and that the defendant was in contempt for the non-payment of those costs, when it was asked that the motion might stand over, in order to give an opportunity of paying the costs and clearing the contempt. LORD LYNDHURST said that that was an indulgence, which in general he should not refuse. But that in this case there had been already several similar motions, and the defendant had himself made the last motion in person, when the rule of the Court was explained to him, which forbids the renewal of a motion of this kind by a party, who has not obeyed the order of the Court, by indemnifying his opponent for the costs of the last motion. The defendant having, notwithstanding this, brought on a new motion, leaving the costs of the last motion unsatisfied, it was not a case for any indulgence, and he should refuse the motion, and of course refuse it with costs. Needham v. Needham, L. C. January, 1845 (a). Lord Bacon's PRINCIPAL CASES UPON THE QUESTION WHEN PARTIES IN CON TEMPT CAN, AND WHEN THEY CANNOT, BE HEard (b). By the 78th of Lord Bacon's Ordinances of January, 1618, they that are in contempt are not to be heard (c) neither in that (a) It is necessary to state (see post, page 217) that the reporter was one of the counsel in the case. (b) Some classes of cases now of no use in practice are omitted, this part exceeding the number of sheets, of which it was intended to consist. Probably an account of them will be given on some other convenient occasion. They are interesting for the his tory of this branch of our procedure. The increased liberality of the Court is remarkable. There are some cases in the Irish Reports, which cannot well be understood without an explanation of a peculiarity in the Irish'practice. Those cases are also passed over. (c) All the printed copies have "here" instead of "heard :" but the writer found the latter read suit, nor any other, except the Court of special grace suspend the contempt. 1846. CHUCK V. In Wilson v. Bates, 3 Myl. & Cr. 201, Lord Cottenham said CREMER. it was quite obvious that the terms of the 78th Ordinance of Lord Bacon, if strictly acted upon, would produce a very different state of practice from that, which is recognised in modern times. That if he were called upon to settle a rule for future guidance, he certainly never should lay down any such rule. In the same case, page 204, Lord Cottenham said, that he had no disposition whatever to extend the practice of the Court, in the construction of Lord Bacon's Ordinance, beyond what he found to be established. In Ricketts v. Mornington, 7 Sim. 200, the Vice-Chancellor said, that Lord Bacon's order, as administered in practice, was confined to cases where parties, who are in contempt, come forward voluntarily and ask for indulgences. In Vowles v. Young, 9 Ves. 173, Lord Eldon said, that as to General doccontempt the general rule is, that the parties must clear their trine. contempt before they can be heard. So in an anonymous case, 15 Ves. 175, his Lordship said, that it was perfectly true as a general rule that a party, who has not cleared his contempt, cannot be heard. The passage, in page 33 of Gilbert's Forum Romanum, which is generally referred to as showing the rule of the Court, that a party cannot be heard in the cause till he has cleared his contempt, is merely a statement of the practice according to the canon law. In Hill v. Bissel, Mosely, 258, Lord King said, that you may move to discharge an order though you are in contempt for not obeying it, and that it was so resolved by the Lords Commissioners in the case of the Earl of Suffolk and Mr. Howard, where Lord Macclesfield had made an order upon the defendant to produce the writings for the plaintiff's inspection, according to the submission in the answer (a). ing in an old manuscript in the Museum, which he had occasion to examine a few years ago. It is, beyond a doubt, the true reading.-Lord Bacon's Ordinances P are not entered in the Registrar's (a) In the time of Lord Chan- Parties may be heard to get rid of the contempt and irregular proceedings connected with 1846. CHUCK V. Case of an outlaw. In Re Brady, 1 Moll. 254, Sir Anthony Hart said there was an exception to the rule, that a party in contempt by disobedience to an order cannot be heard until he complies. That a party in a cause ordered to do an act and omitting to do it, although he be in contempt, shall be heard to contest the regularity of the process-to show that the process is irregular. See also a passage in the judgment in Howard v. Newman, 1 Moll. 221, stated post, page 219. In Odell v. Hart, 1 Moll. 492, where the defendant moved to set aside for irregularity an attachment against him for not bringing in title deeds, Sir Anthony Hart said that a party in contempt might move by counsel to set aside the order against him, by which he was declared to be in contempt, for irregularity in that order; that as to the argument that the contempt consisted in not doing the thing ordered to be done, that might be so in one sense, but, if it was meant in the sense of disabling a man from applying to the Court, it would lead to that of which he knew no instance, that a man being ordered to do an act by a given day, should do it first, and then come to set it right afterwards. In Wilson v. Bates, MS. Cases, S. C. 3 Myl. & Cr. 201, Lord Cottenham said, that although it might be generally true that a party in contempt could not be heard to make a motion, yet the practice of the Court nevertheless permitted him to be heard on application to get rid of that contempt, and any irregular proceedings connected with the contempt. In Hawkins v. Hall, 1 Beav. 73, the plaintiff appears to have been an outlaw, but coming to England he was arrested under an attachment for non-payment of costs; and a motion being made on his behalf to set aside the attachment for irregularity, it was objected that he was an outlaw, and could not be heard in a liament, in a case heard there : ders by virtue whereof they are in prison and if such courts shall continue to detain them wrongfully, then shall such persons come to the High Court of Parliament, which shall do them justice, and such erroneous orders shall be discharged. Old MS. The case alluded to seems to be Stone v. Byrne, 5 Bro. P. C. 210, and 5 Viner's Abr. 451, pl. 14. 1846. CHUCK V. court of justice. Outlawry, it was said, was a more serious objection than a mere contempt. The Master of the Rolls said that the question was whether the plaintiff was entitled to make the CREMER. application, he being under outlawry. That he conceived that an outlaw was not entitled to come into a court of justice to establish a demand of his own; but that was not then the question; for the proceeding against the outlaw was in the nature of a penal proceeding for non-payment of costs: and the question was whether, when a party had been improperly detained, he had not a right to come into court, to get rid of the irregular proceedings. He did not come to establish a demand, but to complain that injustice had been done by the party proceeding against him, or, in other words, that the power of the Court had been used improperly against him. Whatever was the case formerly, in the present day an outlaw was entitled to the benefit of the law for his personal protection; and he must therefore be entitled to apply to a court of justice, to remove an irregular order by which he was improperly detained. though in contitled to appear and resist proceedings tempt, is en taken against In Anon. v. Lord Gort, 1 Hog. 77, the plaintiff moved for a A party, alreceiver, and the motion being opposed by the defendant, who was in contempt, it was insisted that he could not be heard until he had purged his contempt. Sir William M'Mahon said that the general rule was, that when a party was in contempt he would not be allowed to oppose the relief sought by the plaintiff, by him. contradicting the allegations in the bill, or bringing forward any defence, or alleging new facts; neither would he be heard by affidavit, except it be made with a view of purging his contempt. But he might be heard to direct the attention of the Court to any error or insufficiency in the plaintiff's own case as made by the bill; as, for example, if it should appear by the bill that plaintiff's charge only extended over White-acre, and the plaintiff by motion sought a receiver over Black-acre. The accuracy of some of these dicta may be doubted. In Valle v. O'Reilly, 1 Hog. 199, the plaintiff moved for a receiver, when his motion was opposed by the defendant, who was in contempt. The Court said that as the defendant was in contempt, although he could not be heard to dispute or deny the plaintiff's case as disclosed by the bill, yet he might be heard to point out the irregularity or impropriety of any application made by his antagonist. The motion was refused on the ground of the |