No. I. 1 W. 4, c. 36. brought to the bar of the court; but the thirty days allowed in the first above mentioned case, and the ten days allowed in the second above mentioned case, shall be reckoned from the first day of next term. 6. 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 shall be examined in open court,) that he is unable by reason of poverty to employ a solicitor to put in his answer, the court shall 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 the court may make such order as upon other reports of the like nature under the provisions hereinafter contained. (1) 7. That on the thirtieth day of January, the thirtieth day of April, the thirtieth day of July, and the thirtieth day of October, in every year, or if any of those days happen on a Sunday, then on the following day, one of the masters of the court of chancery, to be named by the court, shall visit the Fleet prison, and examine the prisoners confined there for contempt, and shall report their opinion on their respective cases to the court; and thereupon it shall be lawful for the court to order, if it shall see fit, that the costs of the contempt of any such prisoner shall be paid out of the interest and dividends arising from the several government or parliamentary securities standing in the name of the accountant general of the said court of chancery, intituled "Account of Monies placed out "for the Benefit and better Security of the Suitors of the High "Court of Chancery,” and “ Account of Securities purchased with "Surplus Interest arising from Securities carried to an Account of "Monies placed out for the Benefit and better Security of the "Suitors of the High Court of Chancery," or out of any cash standing to either of such accounts, or to any other account which is now or hereafter may be standing to the credit of the suitors of the said court of chancery, (after and subject to the payment of all charges which by any act heretofore passed are directed to be paid thereout,) and to assign a solicitor and counsel to such prisoner, for putting in his answer and defending him in formá pauperis, and to direct any such prisoner, having previously done such acts as the court shall direct, to be discharged out of custody; provided that if any such defendant become entitled to any funds out of such cause, the same shall be applied, under the direction of said court, in the first instance to the reimbursement of the suitors' fund. 8. That it shall be lawful for the master visiting the Fleet, or to whom the case of a prisoner shall be referred by the court itself, to examine the prisoner, and all other persons whom he may think it proper to examine, upon oath, and to administer an oath or oaths to any (1) A reference having been made under this rule, neither the defendant nor any other person on her behalf appeared before the master, though she had been personally summoned. The master proceeded exparte with the inquiry, and reported that the defendant did not appear to be able, by reason of her poverty, to employ a solicitor to put in her answer. The court refused to order the bill to be taken pro confesso, but referred it back to the master to review his report, and ordered the warden of the Fleet to produce the defendant before the master at such time and place as the master should appoint, and that the inquiry should be proceeded with in defendant's presence; Atkinson v. Flint, 5 Simons, 77. A defendant who was in contempt for not answering the bill, on being brought to the bar of the court under this rule, deposed that she was unable, by reason of poverty, to employ a solicitor to put in her answer, upon which the usual reference was made to the master. The defendant refused to make any statement to the master as to the subject of the reference, and the master proceeding ex parte, which being cert fied by him in the usual way, court ordered proceedings to be taken under the second rule of the act, and she being brought to the bar accordingly, and the record of the bill being read, and she refusing to put in her answer, was ordered that the bill be taken pro confesso against her; Williams v. Parkinson, 5 Simons, 74. the it such prisoner and other persons accordingly; and to cause any 9. That if it shall appear to the satisfaction of the court, that any such 11. That in every case where the defendant has been brought to the bar of this act. 13. That where the defendant is in contempt for not appearing or not answering, and in actual custody under process for such contempt, or being already in custody shall be detained by an attachment for such contempt, and shall not, where the contempt is for not appearing, enter an appearance within twenty-one days after he is lodged in gaol or prison, or the attachment is lodged against him, (he being already in prison,) as the case may be, or, where the contempt is for not answering, put in an answer within two calendar months after he is lodged in gaol or prison, or the attachment is lodged against him, he being already in prison, the plaintiff shall (as the case may be), within fourteen days after the period computed from the expi S S No. I. W. 4, c.36. No.I. 1 W. 4, c. 36. ration of such twenty-one days within which he may by the provisions of this act be able to enter such appearance, cause an appearance to be entered for the defendant under the powers of this act, and shall at the expiration of such two calendar months proceed to take the bill pro confesso, and shall accordingly obtain an order for taking the same pro confesso within six weeks after the period computed from the expiration of such two calendar months within which he may be able to take the same pro confesso; or in default of so doing in either of such cases, the defendant shall, upon application to the court, be entitled to be discharged out of custody without paying any of the costs of the contempt, unless the court shall, under the power herein-before contained, see good cause to remand and detain the defendant in custody, and this rule shall apply to every defendant in custody before and at the time of the passing of this act, who shall not have entered his appearance, and for whom an appearance shall not have been entered, or shall not have answered the bill, and the bill shall not have been taken pro confesso, but the twenty-one days and two calendar months respectively to be reckoned from the first day of next term, and the other periods to be altered accordingly in computation; but nothing in this act shall prevent any plaintiff from proceeding to take his bill pro confesso, according to the practice existing before the passing of this act, where at the time of passing of this act his proceedings shall be so far advanced that the powers of this act would not enable him to accelerate the period for taking his bill pro confesso. 14. That where a defendant is in custody for contempt in not answering, and shall be able to put in his answer by borrowing or obtaining a copy of the bill, without taking an office copy of the bill, he shall not be compellable to take any such copy, but the clerk in court may (if he think the defendant is of sufficient ability to pay for an office copy) require him, before the answer is filed, to make an affidavit denying his ability in consequence of poverty to pay for an office copy of the bill. 15. That when any person shall have been directed by any decree or order to execute any deed or other instrument, or make a surrender or transfer, or to levy a fine or suffer a recovery, and shall have refused or neglected to execute, make, or transfer, or levy or suffer the same, and shall have been committed to prison under process for such contempt, or, being confined in prison for any other cause, shall have been charged with or detained under process for such contempt, and shall remain in such prison, the court may, upon motion or petition, and upon affidavit that such person has, after the expiration of two calendar months from the time of his being committed under, or charged with, or detained under such process, again refuse to execute such deed or instrument, or make such surrender or transfer, or levy or suffer such fine or recovery, order or appoint one of the masters in ordinary, or if the act is to be done out of London, then, if necessary, one of the masters extraordinary, to execute such deed or other instrument, or to make such surrender or transfer, for and in the name of such person, and to levy such fine or suffer such recovery in his name, and to do all acts necessary to give validity and operation to such fine and recovery, and to lead or declare the uses thereof; and the execution of the said deed or other instrument, and the surrender or transfer made by the said master, and the fine or recovery levied or suffered by him, shall in all respects have the same force and validity as if the same had been executed or made, levied or suffered, by the party himself; and within ten days after the execution or making of any such deed or other instrument, or surrender or transfer, or levying or suffering such fine or recovery, notice thereof shall be given by the adverse solicitor to the party in whose name the same is executed or made; and such party, as soon as the deed or other No. I. instrument, or surrender, transfer, fine, or recovery shall be executed, made, levied, or suffered, shall be considered as having 1 W. 4, c. 36. cleared his contempt, except as far as regards the payment of the costs of the contempt, and shall be entitled to be discharged therefrom under any of the provisions of this act applicable to his case; and the court shall make such order as shall be just, touching the payment of the costs of or attending any such deed, surrender, instrument, transfer, fine, or recovery. 16. That where a person shall be committed for a contempt in not delivering to any person or persons, or depositing in court or elsewhere, as by any order may be directed, books, papers, or any other articles or things, any sequestrator or sequestrators appointed under any commission of sequestration shall have the same power to seize and take such books, papers, writings, or other articles or things, being in the custody or power of the person against whom the sequestration issues, as they would have over his own property; and thereupon such articles or things so seized and taken shall be dealt with by the court as shall be just; and after such seizure it shall be lawful for the court, upon the application of the prisoner, or of any other person in the cause or matter, or upon any report to be made in pursuance of this act, to make such order for the discharge of the prisoner, upon such terms, and, if it shall see fit, making any costs in the cause, as to the court shall seem proper. 17. That in any other case of a commitment for contempt, not herein specially provided for, the court may upon any such application as last aforesaid, or upon any such report as aforesaid, make such order for the discharge of the prisoner, upon any such terms, and making, if the court shall see fit, any costs in the cause, as to the court shall seem proper. 18. That where any person committed for a contempt shall be entitled to his discharge upon applying to the court, but shall omit to make such application, the court may upon any such report as aforesaid compulsorily discharge such person from the contempt and from custody, and pay the costs of the contempt out of any funds belonging to him over which the court may have power, or make them costs in the cause as against him, or may discharge him from the contempt, but leave him in custody for the costs, which may be cleared, if he be insolvent, under the provisions herein-after contained in that behalf. 19. That where any party obstinately retains possession of lands or other real property after a writ of execution of a decree or an order for delivery of possession has been duly served and demand of possession made, and upon an affidavit of such service of the writ of execution, and of such demand made thereunder, and a refusal to comply therewith on the part of the person against whom the writ issued, the party issuing it shall be at liberty, upon an affidavit of service of the writ of execution and demand of possession and refusal, to obtain the usual order of course for the writ of assistance to issue, and that the intermediate writs of attachment and injunction further commanding the party to deliver possession, or any other writ, shall be unnecessary. 20. That in order to relieve persons in prison from the expence of a master's attendance to take affidavits or answers, the lord high chancellor do, by one or more commission or commissions under the great seal, upon or in respect of which no fee shall be payable, nominate and appoint the warden, keeper, or other chief officer of every prison within the city of London, or the bills of mortality, and their deputies, to be masters extraordinary of the high court of chancery, for the purpose of taking and receiving such affidavits and answers as any person or persons within any such prison shall be willing or desirous to make, and for no other purpose; and the person so taking such affidavit or answer shall in respect thereof No. I. 1 W. 4, c. 36. Discharge may extend to pro cess for con. tempt in nonpayment of money, and to costs incurred by creditor, but subject to tax ation. When process of contempt is for nonperform ance of an act. Powers given by this act to the court of be entitled to receive a fee of one shilling, and no more; and the court of exchequer shall in like manner appoint such persons as aforesaid a commissioner or commissioners of the said court, for the purposes aforesaid, and no others, and with the right to the like fee, and no more; and in every case of an answer being sworn in prison, a clerk of a master or baron (as the case may require) shall attend to take and carry back to and from the prison the answer, and shall in respect thereof be entitled to a fee of three shillings, and no more. XVI. That the discharge of any prisoner adjudicated upon under the authority of an act passed in the seventh year of his present Majesty's reign, intituled An Act to amend and consolidate the Laws for the Relief of Insolvent Debtors in England, or any other act which may hereafter be passed for the relief of insolvent debtors, shall and may extend to all process issuing from any court of equity for any contempt of such court for nonpayment of money, or of costs, charges, or expences in any such court; and that in such case, the said discharge shall be deemed to extend to all costs which such prisoner shall be liable to pay in consequence or by reason of such contempt, or on purging the same; and that every discharge, so adjudicated as aforesaid, as to any debt or damages of any creditor of such prisoner, shall be deemed to extend also to all costs incurred by such creditor, before the filing of such prisoner's schedule, in any action or suit brought by such creditor against such prisoner for the purpose, for the recovery of the same; and that all persons as to whose demands for any such costs, money, or expences any such person shall be so adjudged to be discharged, shall be deemed and taken to be creditors of such prisoner in respect thereof, and entitled to the benefits of all the provisions made for creditors by the said act, or any future act; subject nevertheless to such ascertaining of the amount of the said demands as may be had by taxation or otherwise, and to such examination thereof as is in the said last-mentioned act, or as shall be in any future act provided in respect of all claim to a dividend of such insolvent's estate and effects. XVII. That where the process of contempt is for the nonperformance of an act, for example, the not answering the plaintiff's bill, and the bill in equity to which the insolvent is a party is taken pro confesso, and he has not paid the costs of the contempt, or the insolvent has fully answered the plaintiff's bill or interrogatories, or otherwise cleared his contempt, except as far as regards the payment of the costs, or it has become in event unnecessary for him to do the act for the nonperformance of which he was committed or attached, the court of equity in which the suit is depending shall upon the application of the party in contempt, discharge him from the same, except as to the costs thereof, for which he shall remain in custody, and such costs shall be deemed within the provision lastly hereinbefore contained, and he shall be dischargeable therefrom, and from the process of contempt, in like manner as if the process of contempt were for nonpayment of money or costs; provided that this order or regulation shall not weaken any of the other powers by this act given, nor shall anything herein contained lessen the operation of the said act for the relief of insolvent debtors. XVIII. That the powers and authorities given by this act to the court of chancery, or to the lord chancellor of Great Britain, shall and chancery to ex- may be exercised as well by such lord chancellor as by (and they are tend to the lord keeper. Certain rules to hereby given to) the lord keeper or commissioners of the great seal of Great Britain for the time being, and to the master of the rolls and vice chancellor respectively; but the reports of the warden of the Fleet, and of the masters visiting there, shall be made to the lord chancellor, lord keeper, or lords commissioners only, who alone are to make orders thereupon for discharge or relief of prisoners. XIX. That such of the rules herein-before directed to be adopted by be adopted by the court of chancery as are numbered from five to twenty, both inclucourt of exchequer. |