'he shall cause a memorandum of such service, and of the time when such service was made, 'to be entered in the Six Clerks' Office, first obtain'ing an order of the Court for leave to make such ' entry, which order shall be obtained upon motion 'without notice, upon the Court being satisfied of ' a copy of the bill having been so served, and of the ' time when the service was made;" and, by the 25th, "That where a defendant shall have been served 'with a copy of the bill, under the twenty-third Or'der, and a memorandum of such service shall have 'been duly entered, and such defendant shall not ' within the time limited by the practice of the Court for that purpose, enter an appearance in common form, or a special appearance under the twentyseventh Order; the plaintiff shall be at liberty to proceed in the cause, as if the party served with a copy of the bill were not a party thereto, and 'the party so served shall be bound by all the pro'ceedings in the cause, in the same manner as if he had appeared to and answered the bill.". It has been seen that the plaintiff is not precluded, if he think proper, from prosecuting the suit in the ordinary manner against a party from whom he seeks no direct relief. On the other hand, such a party is to be entitled to have the suit so prosecuted against him, if he desire it; "and in that case he 'shall enter an appearance in the common form, ' and the suit shall then be prosecuted against him in 'the ordinary way. But the costs occasioned thereby 'shall be paid by the party so appearing, unless the • Court shall otherwise direct." (26 C. & L.) Ordinary Process of Contempt. ALTHOUGH the old process of contempt has been in great measure abolished, yet it may still be convenient to retain some short account of it, for the purpose of rendering more intelligible the modern Orders and the present practice on the subject. The routine of the process was nearly the same, whether the object was to enforce the appearance or answer of the defendant, or to compel the performance of an order or decree. The regular series of steps when the process was followed up to its termination, were attachment, attachment with proclamations, commission of rebellion, serjeant-at-arms, and sequestration*. * The mode of obtaining and executing the various steps Attachment. in the process of contempt is thus stated in the former edition of this work :- Attachment with proclamations. By the 6th (C. & L.) it is ordered, "That no writ of attachment with proclamations, nor any writ of "If the attachment be for want of appearance, there must be an affidavit of due service of the subpoena, and that the defendant has not appeared; (Bea. Ch. Ord. 169); if for non-performance of an order, there must be an affidavit of service of the writ of execution, of the decree, and default. (Gilb. For. Rom. 191; and see Collins v. Crumpe, 3 Madd. 390). The form of the writ is the same whether it be on mesne process or to enforce execution of a decree, but the indorsement expresses the object of it. (See Harr. 121, App. Reg. Brev. 45, for the form of the writ). The attachment must be entered in the registrar's book; (Smith v. Thompson, 4 Madd. 179; Bea. Ch. Ord. 110); and when an affidavit is necessary, it must be filed before the attachment can regularly issue. (Bromhead v. Smith, 8 Ves. 357). It is considered to be issued when it is delivered out by the sealer to the clerk in court; (Gardner v. Rowe, 4 Russ. 578); and it is irregular if sealed and delivered to the clerk in court before the affidavit be filed, although not parted with till after. (Ib). 'If the sheriff attach the party, he may take bail for the defendant's appearance or answer at the return of the writ, but is not compellable to do so. (Studd v. Acton, 1 H. Black. 468). If the attachment be for non-performance of a decree it is not bailable. (Harr. 120). If the sheriff permit a party taken upon an attachment for non-payment of money to go at large, the sheriff will be ordered to pay the money. (Bea. Costs, 138). 66 "If the sheriff fail to attach the defendant under the writ of attachment he returns non est inventus. This writ, with the return indorsed upon it, being left with the clerk in court, he will thereupon make out the attachment with proclamations, and leave it with the bag-bearer in the Six Clerks' Office to be sealed. (1 Newl. 95). It must be entered with the registrar in the same manner as an attachment. (Harr. 127, 133). The form of this writ, whether it be on mesne process, or to enforce obedience to an order, is the same, but the indorse ' rebellion, be hereafter issued for the purpose of ' compelling obedience to any process, order, or dement explains the purpose. (See Harr. 127, 133; App. Reg. Brev. 46, for the form of the writ). of rebellion. "Upon the return of non est inventus to the attachment Commission with proclamations, a commission of rebellion issues against the defendant. (Harr. 129; Gilb. For. Rom. 129). A docket of it must be marked as entered by the registrar. (Harr. 133). The form is the same with that on mesne process, but the indorsement explains the purpose. (See the form, Harr. 132, App. Reg. Brev. 47). A commission of rebellion for nonperformance of a decree is not bailable. (Harr. 129). On mesne process the commissioners have a discretionary power to take bail for the defendant's appearance at the return day of the writ; if bail is not given they ought to bring up the defendant immediately to the Court of Chancery, and have no right to keep him in prison. (Newl. 98). If they let him escape, the Court, upon an affidavit of the fact, and a day given to shew cause to the contrary, will order them to be committed. (Ibid). "Upon the return of non est inventus to a commission of Serjeant-atrebellion, the next process is a serjeant-at-arms. This being (Gilb. For. The order is a prerogative process does not issue without order. arms. "If the serjeant-at-arms cannot take the party, upon his Sequestration. return of non est inventus, an order may be obtained for a sequestration. (Gilb. For. Rom. 191; Bea. Ord. Ch. 322). 6 cree of the Court." The process of contempt is now, therefore, in all cases reduced to attachment, serjeant-at-arms, and sequestration. Process of contempt for not appearing to the bill, is, as will in the next chapter be more fully stated, in effect abolished. (7 & 8 C. & L.) The party against whom the attachment issues may be apprehended by the sheriff, or he may be already in the custody of the sheriff at the instance of some other party, in respect of an arrest for debt, or under the process of another Court, or on a criminal charge. In any of these cases the sheriff's return is cepi corpus. If the defendant be in the actual custody of the sheriff, the proper course seems to be, to bring him to the bar of the Court by habeas corpus. (Bowes v. Lord Strathmore, 12 Ves. 325; Dunkley v. Scribnor, 2 Madd. 443, where the parties were in custody on civil process; Bowes v. Countess of Strathmore, 2 Dick, 711; Moss v. Brown, 1 Ves. & Bea. 78, where the party was in custody on a criminal charge). This writ issues by order, which may be made on motion or petition, but usually on motion. (Harr. 124. For the form of the order, see This being a prerogative process, does not issue without order. (Ib.; and see Edwards v. Pool, 2 Dick. 693). The order must be made on motion, not on petition. (Bea. Ord. Ch. 215; Harr. 138). The return must be filed before the motion is made. (Floyder v. Nangle, 3 Atk. 569). If the defendant be taken by the serjeant-at-arms, he is to be brought into Court and turned over to the Fleet, and thereupon an order will be made for a sequestration as of course. (Edwards v. Pool, sup. ; and see Rowley v. Ridley, 2 Dick. 624; Bea. Ord. Ch. 322)." |