Page images
PDF
EPUB

certiorari, error, supersedeas, and the like. For, as the king's superior courts (and especially the court of King's Bench) have a general superintendence over all inferior jurisdictions, any corrupt or iniquitous practices of subordinate judges are contempts of that superintending authority, whose duty it is to keep them within the bounds of justice. 2. Those committed by sheriffs, bailiffs, gaolers, and other officers of the court: by abusing the process of the law, or deceiving the parties, by any acts of oppression, extortion, collusive behaviour, or culpable neglect of duty (7). 3. Those committed by attorneys and sclicitors, who are also officers of the respective courts : by gross instances of fraud and corruption, injustice to their clients, or other dishonest practice (8). For the mal-practice of the officers reflects some dishonour on their employers : and, if frequent or unpunished, creates among the people a disgust against the courts themselves. 4. Those committed by jurymen, in collateral matters relating to the discharge of their office; such as making default, when summoned; refusing to be sworn, or to give any verdict; eating or drinking without the leave of the court, and especially at the cost of either party; and other misbehaviours or irregularities of a similar kind: but not in the mere exercise of their judicial capacities, as by giving a false or erroneous

(7) An attachment nisi was granted against the town clerk of Guildford, and a person who had been convicted under the Game Act, the former for granting, and the latter for suing out, a replevin of goods distrained for the penalty ; Rer v. Burchett, 1 Stra. 557. An attachment was granted against a person who had replevied three horses seized under a magistrate's warrant as forfeited under a Turnpike Act; Rerv. the Sheriff of Leicestershire; Barnard, 110. An attachment was issued against the under sheriff of Cumberland, for granting a replevin of goods distrained on a conviction for deer stealing ; Rer V. Monkhouse, 2 Stra. 1184. An at tachment was granted for arresting the plaintiff while attending arbitrators under a rule of court, on purpose to prejudice his cause; Rex v. Hall, 2 W. Bla. 1110.

(8) Where an attorney is charged by affidavit with any fraud or malpractice in his profession, contrary to the obvious rules of justice and common honesty, the courts on motion will order him to answer the matters of the atti. davit; and, in general, if he positively deny the mal-practices imputed to him, they will dismiss the complaint; but otherwise they will grant an attachment; Tidd, 79; Imp. K. B. 83; Bac. Abr, Attorney, H. And, if an attorney, required to answer the matters of an affidavit, swear in his exculpation to an incredible story, an attachment will be granted against him, though he positively deny the mal-practices imputed to him ; in re Crossley, 6 T. R. 701; and see Tidd, 70, 79, 231, 427, 496.

verdict (9). 5. Those committed by witnesses: by making default when summoned, refusing to be sworn or examined, or prevaricating in their evidence when sworn (10). 6. Those

[ocr errors]

(9) Vide, ante, 140, notes (44) and (4.5); post 36).

(10) The court of King's Bench has no power to grant an attachment against a witness for disobeying a subpona issued out of the court of quarter sessions ; Rei v. Room, 3 Nev. & Man. 725. An attachment lies against an attorney in the cause, for not attending upon a subpæna, to give evidence of collateral facts; Doe v. Andreus, 2 Stra. 810; 2 Ld. Raym. 1328; Cowp. 815. But an attorney is not liable to an attachment for refusing to obey a subpoena to appear before the grand jury, and give evidence, on an indictment for forgery, against his client; Rei v. Diron, 3 Burr. 1687. In order to ground this summary proceeding, it is necessary to prove that the witness was personally served with a subpona; 2 Stra. 10.51. And see Ali in ander v. Dirom, 1 Moore, 387; 1 Bing. 366. And, in civil cases, that his reasonable expenses were paid, or tendered him; Isolie v. Smith, 1 Marsh, 410; Horne y. Smith, 8 Taunt. 9; Boules v. Jackson, 1 W. Bl. 36; Ful. ler v. Prentice, 1 H, BI. 49; Baltye V. Giesley, 8 East, 319; Hallett v. Mears, 13 East, 15; Ashton v. Haigh, 2 Chit. R. 201. Where a cause was referred to an arbitrator by order of nisi prius, and a witness, duly subpanaed, refused to attend before the arbitrator, the court of K. B., on motion, refused to make any order upon aim to attend the arbitrator and give evidence, though it was sworn that he was a material and necessary witness for the party making the application : the court being of opinion that as 130 years had elapsed since the passing of the statute 9 X 10 W. III. c. I, which originated such references, and no pre. cedent had been cited in support of the motion, it would not be safe or

proper for them to introduce so new a proceeding; Mansell v. Southarood, K. B., E. T. 1829. Ed. MS. It was admitted upon the discussion of that case, that a witness attending an arbitrator under a reference by order of nisi prius, would be privileged from arrest, eundr, morando, et redeundo, the same as if attending the court making the order; see Randall r. Gurney, 3 B. & A. 252, 1 Chit. R. 679; Ili ketts v. Gurney, 7 Price, 699, 1 Chit. R. 682. And it was argued, that the arbitrator being the delegate and representative of the court, a refusal to appear before him upon subpana, was a contempt of the court itself. There seems much weight in that argument, and the refusing the motion merely on the ground that there was no precedent for it, is no very satisfactory answer. If the court making an order of reference, has no power to compel the attendance of witnesses before the referee, it seems necessary that an Act of Parliament should be pa sed conferring that power; for otherwise the whole system of deciding suits by arbitration, which affords many advantages to suitors, while it gives much relief to the courts, may be rendered unavailing and aseless. The motion for an attachment against a witness for not appearing, should, as in other cases of contempt, be made as carly as possible; and, therefore, the court refused an attachment in Hilary term, for non-attendance at the preceding summer assizes. - 1. St. Leger, H. T. 37 Geo. III. K. B. Tidd, 849; and see Rer v. Stretch, 5 Nev. & Man. 178, S. P. As to commitments by commissioners of bankrupt of a bankrupt, see ante 156 note (3); of a ritness, see 6 Geo. IV. c. 16, $$ 33, 34, 39. On a question of the legality of the latter, all the questions

[ocr errors]

committed by parties to any suit or proceeding before the court: as by disobedience to any *rule or order, made in the progress of a cause (11); by non-payment of costs awarded by the court upon a motion (12); or by non-observance of awards duly made by arbitrators or umpires, after having entered into a rule for submitting to such determination (e) (13). ' Indeed the attachment for most of this species of contempts, and especially for non-payment of costs and non-performance of awards, is to be looked upon' rather as a civil execution for the benefit of the injured party; though carried on in the shape of a criminal process for a contempt of the authority of the court. And therefore it hath been held that such contempts, and the process thereon, being properly the civil remedy of individuals for a private injury, are not released or affected by a general act of pardon. And, upon a similar principle, obedience to any rule of court may also, by statute 10 Geo. III. c. 50, be enforced against any person having privilege of parliament by the process of distress infinite. 7. Those committed by any other persons under the degree of a peer; and even by peers themselves, when enormous and

(e) See vol. III. page 17.

and answers must be looked at as will not lie against commissioners for forming one examination, and a wit- committing a witness for not satisness cannot be committed for not an. factorily answering on examination, swering as to his belief of the intention though he appears to the court (K.B.) of the bankrupt, unless other parts of to have answered satisfactorily; Doshis examination shew such belief to be well v. Impey, 2 D. & R. 350; 1 B. & material with reference to the person, C. 163. trade, dealing, or estate of the bankrupt; (11) Doddington v. Hudson, 8 Er parte Bagster, 8 B. & C. 344; 1 M. Moore, 510, 610; 1 Bing. 410, 464; & R. 573. The commissioners cannot Rer v. Edyvean, 3 T. R. 352; Balecommit a witness for refusing to read an man v. Phillips, 4 Taunt. 157. entry in a book. Ex parte Isaar, 3 Y. (12) Lewis v. Morland, 2 B. & A. & J. 38. Where a witness summoned 56; Re» v. Curuen, 1 Moore, 494 ; to give evidence before the commis- Merrit v. Meek, 3 Anstr. 656; King sioners refuses to appear, they may v. Clifton, 5 T. R. 257. A party ar. issue their warrant for his apprehen- rested under an attachment for consion, without having information on tempt of court in not paying money, outh of his refusal. In an action by is not entitled to be discharged upon such witness against the commissioners tendering the amount to the officer ; for false imprisonment, the reasonable. Pitt v. Coombes, 3 Nev. & Man. 212. ness of the summons, and of the tender (13) Good v. Wilkes, Tidd, 1070; of expenses, is a question of fact for Anon., Lofft, 321, 451; Rex v. Wheeler, the jury; Grocock v. Cooper, 8 B. & 3 Burr. 1256; Kenyon v. Grayson, C. 211; 2 M. & R. 78. Trespass 2 Smith, 61. VOL. IV.

FF

accompanied with violence, such as forcible rescous and the like (5) (14), or when they import a disobedience to the king's great prerogative writs, of prohibition, habeas corpus (g), and the rest. Some of these contempts may arise in the face of the court; as by rude and contumelious behaviour ; by obstinacy, perverseness, or prevarication; by breach of the peace, or any wilful disturbance whatever : others in the ab. sence of the party; as by disobeying or treating with disrespect the king's writ, or the rules or process of the court (15); by perverting such writ or process to the purposes of private malice, extortion, or injustice; by speaking or writing contemptuously of the court, or judges, acting in their judicial capacity ; by printing false accounts (or even true ones without proper permission) of causes then depending in judgment (16);

[ocr errors][ocr errors]

(14) Peers are not liable to be at tached for the non-payment of money pursuant to an order of nisi prius, which has been made a rule of court; Walker y. Earl Grosvenor, 7 T. R. 171; 1 Tidd, 199. Nor are members of the House of Commons; Catmurv. Knatchbull, 7 T. R. 448; 1 Tidd, 200. But this privilege will not exempt from attachments for not obeying the process of the courts; Rerv. Earl Ferrers, 1 Burr. 631 ; 1 Tidd, 199.

(15) A defendant being served with a copy of a capias, tore it in pieces and threw it at the officer: held, not to amount to a contempt of court for which an attachment might be granted; Myers v. Wills, 4 Moore, 147. So, where a person, on being served with process, collared and shook the officer serving it, and ordered him to quit his presence; held, that this did not amount to a contempt of court and obstruction of its process, for which an attachment might be granted; Adams v. Hughes, 1 B. & B. 24. But in Adamson v. Gibson, H. T. 27 Geo. III. K. B. Tidd, 171, an attachment was moved for against the defendant's wife and daughter, for treating the process

of the court with contempt, by throwing it into the street; and the court said, that on a return by the sheriff, the rule for an attachment was absolute in the first instance; but on affi. davits, the party must have an oppor. tunity of answering

(16) A court of general gaol delivery has jurisdiction to make an order to prohibit the publication of proceed. ings there, pending a trial likely to continue for several successive days, and to punish disobedience to such order by fine and imprisonment; Rex v. Clement, 4 B. & A. 218. And if the offending party, being summoned to attend the court to answer for the contempt, by an order issued for that purpose, should not appear, the court has jurisdiction to impose a fine on him in his absence. In re Clement, 11 Price, 68. And service of such an order, by leaving it with the servant of the party, who was the printer, publisher, and sole proprietor, of a newspaper, at the newspaper-office, is good; ld. And that court having jurisdiction to make such orders, the court of Exchequer refused to grant a rule nisi for the discharge of a party from such

attachment is a part of the law of the land, and

ed by magna

and by any thing in short that demonstrates a gross want of that regard and respect, which when once courts of justice are deprived of, their authority (so necessary for the good order of the kingdom) is entirely lost among the people..

The process of attachment, for these and the like con- [*2867 tempts, must necessarily be as ancient as the laws themselves. The process of For laws, without a competent authority to secure their ad- part of the law ministration from disobedience and contempt, would be vain as such confirmand nugatory. A power therefore in the supreme courts of charta; justice to suppress such contempts, by an immediate attachment of the offender, results from the first principles of judicial establishments, and must be an inseparable attendant upon every superior tribunal. Accordingly we find it actually exercised, as early as the annals of our law extend. And, though a very learned author (h) seems inclinable to derive: this process from the statute of Westm. 2, 13 Edw. I. c. 39, (which ordains, that in case the process of the king's courts be resisted by the power of any great man, the sheriff shall chastise the resisters by imprisonment, " a qua non deliberentur sine speciali præcepto domini regis (17):" and if the sheriff himself be resisted, he shall certify to the courts the names of the principal offenders, their aiders, consenters, commanders, and favourers, and by a special writ judicial they shall be attached by their bodies to appear before the court, and if they be convicted thereof they shall be punished at the king's pleasure, without any interfering by any other person whatsoever,) yet he afterwards more justly concludes, that it is a part of the law of the land; and, as such, is confirmed by the statute of magna carta.

If the contempt be committed in the face of the court, the offender may be instantly apprehended and imprisoned, at the discretion of the judges (i), without any further proof or examination. But in matters that arise at a distance, and of which the court cannot have so perfect a knowledge, unless

(h) Gilb. Hist. C. P. ch. 3.

(i) Staundf. P. C. 73, b.

a fine, on an application made to them gally be, and had been, most properly for that purpose, after it had been es. imposed; Id.; see 3 Y. & J. 91. treated into the Exchequer, on the (17) From which they shall not ground of the illegality of the proceed be discharged without the special order ing, holding, that the fine might le of the king.

« PreviousContinue »