form a particular act, purposely puts it out of his power to obey with a view of evading the order of the Court, such conduct is an aggravation of his original offence in disobeying, and is in itself a contempt of court.

If a plaintiff be guilty of such contempt, he is liable, in addition to fine or imprisonment, to have all proceedings stayed, or even the whole action dismissed, and money paid into Court returned to the defendant. (Republic of Liberia v. Roye, 1 App. Cas. 139; 45 L. J. Ch. 297; 24 W. R. 967; 34 L. T. 145.) A true copy of the order of the Court must as a rule be served. (In re Holt, 11 Ch. D. 168; 27 W. R. 485; 40 L. T. 207.) If, however, at the time of disobedience the offender has from any reasonable source knowledge that the order has been made, it is immaterial that the order has not yet been duly served. Notice by telegram may be sufficient. (In re Bryant, 4 Ch. D. 98; 25 W. R. 230; 35 L. T. 489; Ex parte Langley, Ex parte Smith, In re Bishop, 13 Ch. D. 110; 49 L. J. Bkcy. 1; 28 W. R. 174; 41 L. T. 388.)

Formerly there was a sharp distinction between committal and attachment. Committal was the proper punishment for doing a prohibited act, and attachment for neglecting to do some act ordered to be done. But now for all practical purposes the distinction has been abolished. A writ of attachment still issues to the sheriff, while an order for committal is placed in the hands of the tipstaff of the Court. "A person committed by the Court is unable to be bailed out, whereas under a writ of attachment the sheriff may accept bail." (Per Jessel, M.R., in Buist v. Bridge, 43 L. T. 432; 29 W. R. 117.) Under the former practice it was not necessary to serve notice of motion for attachment. But since the Judicature Acts the old practice has been altered. Neither attachment nor committal can now be obtained by a litigant without notice of motion. And if such notice of motion ask for a writ of attachment where committal is the proper remedy, the judge will amend it. (Callow v. Young, 56 L. T. 147-Chitty, J.)

The officer charged with the execution of a writ of attachment may break open the outer door of the defendant's house in order to arrest him (Harvey v. Harvey, 26 Ch. D. 644; 32 W. R. 76; 51 L. T. 508; 48 J. P. 468)—an attachment for contempt being a criminal and not civil process. (In re Freston, (C. A.) 11 Q. B. D. 545; 52 L. J. Q. B. 545; 31 W. R. 581, 804; 49 L. T. 290; In re Dudley, (C. A.) 12 Q. B. D. 44; 53 L. J. Q. B. 16; 32 W. R. 261; 49

L. T. 737; In re Strong, (C. A.) 32 Ch. D. 342; 55 L. J. Ch. 553; 34 W. R. 614; 55 L. T. 3.)

Illustrations.

A trustee was ordered to pay £94: 148. into Court: on the same day he was adjudicated a bankrupt: the Court refused to attach him for disobedience to the order.

Cobham v. Dalton, L. R. 10 Ch. App. 655; 44 L. J. Ch. 702; 23 W. R.
865.

See also Earl of Lewes v. Barnett, 6 Ch. D. 252; 47 L. J. Ch. 144; 26
W. R. 101.

Pashler v. Vincent, 8 Ch. D. 825; 27 W. R. 2.

The defendant had illegally removed a quantity of human bones and earth from the parish burial ground of Chew Magna to his own field. The Court of Arches issued a monition to him to replace them. In the meantime, the defendant, on the marriage of his daughter to a Mr. Bromfield, conveyed this field and other land to the trustees of the marriage settlement, and it was argued that the defendant was unable to obey the order of the Court, as he no longer either owned or occupied the field, and it was further pretended that Mr. Bromfield refused to allow his father-in-law to enter on the field and remove the bones. The Court of Arches pronounced the defendant guilty of contumacy and contempt. The bones were replaced within six days.

Adlam v. Colthurst, L. R. 2 Adm. & Eccl. 30; 36 L. J. Ec. Ca. 14. An advocate at Aberdeen snatched a petition from the Clerk of the Court; the sheriff-substitute remonstrated and warned him he was committing a contempt of court; but the advocate put the petition in his pocket and immediately left the Court. The sheriff-substitute thereupon issued a warrant ordering him to deliver up the document on pain of imprisonment. As soon as the sheriff's officers entered the advocate's office, and demanded the petition, the advocate threw it into the fire. The officers thereupon immediately seized and imprisoned him. In an action brought by the advocate for false imprisonment, held by the House of Lords, that the arrest was perfectly lawful under the circumstances. Watt v. Ligertwood & another, L. R. 2 Sc. App. 361.

If the contempt is committed in open court and in presence of the judge, he may commit the offender instanter, and without any prior notice. (Gascoyne, C.J., thus committed the Prince of Wales in 1406. See L. R. 2 Sc. App. 367, n.) And I presume this power is not taken away by Order XLIV. r. 2. A written warrant is not essential to such a committal, though it is usual. (Per Wightman, J., in Carus Wilson's Case, 7 Q. B. 1017.)

But when the offender is not present, and the contempt is committed by words spoken or published out of Court, it is usual to grant first a rule nisi calling on the offender to show cause why an attachment should not be granted against him; although the Court still may, and

in flagrant cases will, on clear and satisfactory evidence, grant an attachment in the first instance, and issue its warrant, so that the offender shall answer for his contempt in custody. (Anon. (1711), 1 Salk. 94; R. v. Jones (1719), 1 Stra. 185.) The rule nisi is generally granted on affidavit of the fact, though the Court may proceed on its own knowledge, without any suggestion. (In re The High Sheriff of Surrey, 2 F. & F. 256; Skipworth's and Castro's Cases, L. R. 9 Q. B. 230; 12 Cox, C. C. 358.) If the offender fails to appear and show cause, a warrant may issue for his apprehension (Lechmere Charlton's Case, 2 Myl. & Cr. 316); or he may be fined in his absence. (R. v. Clement, 4 B. & Ald. 218.)

When the offender was brought before the Court, it was formerly the custom to adjourn the matter for four days, in order that interrogatories might be exhibited against him, which he was compelled to answer on oath. But now it is usual to dispense with all interrogatories; the offender at once shows what cause he can, and endeavours to purge his contempt with the aid of ordinary affidavits. If the Court is not satisfied, it may commit him to prison for a time certain, or may impose a fine, or may do both; and in every case the Court may further order the offender to pay the costs of the proceedings. (Martin's Case, 2 Russ. & Myl. 674, n.) But the costs are of course in the discretion of the Court, and will not be granted where the proceedings are clearly vexatious, and the party instituting them is himself to blame. (Vernon v. Vernon, 40 L. J. Ch. 118; 19 W. R. 404; 23 L. T. 697.) The costs should be asked for when the rule is argued (Abud v. Riches, 2 Ch. D. 528; 45 L. J. Ch. 649; 24 W. R. 637; 34 L. T. 713); and in cases where the contempt is slight or unintentional, and the offender submits himself to the Court, and has done all in his power to clear his contempt, the Court often makes no other order except that he pay the costs of the motion. (See L. R. 7 Eq. 58, n.)

The commitment must be for a time certain. (R. v. James, 5 B. & Ald. 894; Green v. Elgie and another, 5 Q. B. 99.) But in all other respects the warrant may be in general terms: no special grounds need be stated; nor need the facts which are the cause of the arrest be specified: it is sufficient to state that the offender is committed for contempt of court. (Howard v. Gosset, 10 Q. B. 411; Ex parte Fernandez, 6 H. & N. 717; 10 C. B. N. S. 3.) Two lines are sufficient (R. v. Paty, 2 Lord Raym. 1108), and will justify the officer of the Court in arresting the offender, and protect him from any action of false imprisonment. It is presumed that the Court was acting regularly and rightly, unless, indeed, the contrary

appears expressly on the face of the writ. (R. v. Evans and another, 8 Dowl. 451.) And the decision of the judge committing cannot be reviewed by any other court. (Burdett v. Abbot, 14 East, 1; Stockdale v. Hansard, per Littledale, J., 9 A. & E. 169; Carus Wilson's Case, per Lord Denman, C.J., 7 Q. B. 1008.) If a fine is inflicted it is usual to add a sentence of imprisonment till the fine be paid, in addition to any other term of imprisonment that may have been inflicted. (L. R. 9 Q. B. 228, 229, 240.) Where the period for which the offender is to be detained is expressed in the margin of the writ, or may be gathered from it by necessary inference, the gaoler should discharge the prisoner at the end of that period. (Moone v. Rose, L. R. 4 Q. B. 486; 38 L. J. Q. B. 236.) But if the warrant does not state the period for which he is to be kept in custody, nor refer to the nature of the contempt committed, the gaoler should not release him without an order of the Court. (Greaves v. Keene, 4 Ex. D. 73; 27 W. R. 416; 40 L. T. 216; McCombe v. Gray, 4 L. R. (Ir.) 432.) When the period assigned comes to an end, the offender may not be detained in custody merely for the costs of the application to the Court to commit. (Jackson v. Mawby, 1 Ch. D. 86; 45 L. J. Ch. 53; 24 W. R. 92; Hudson v. Tooth, 2 P. D. 125; 35 L. T. 820.) A fortiori where condemnation in costs is the only punishment inflicted, the Court has no power subsequently to commit to prison for default in payment. (Mickelthwaite v. Fletcher, 27 W. R. 793; Weldon v. Weldon, 10 P. D. 72; 54 L. J. P. & D. 26, 60; 33 W. R. 370, 427; 52 L. T. 233; 49 J. P. 517.)

The words "Superior Court" include the House of Lords, the Judicial Committee of the Privy Council, the Court of Appeal, the High Court of Justice, and any Divisional Court thereof, and any judge of any Division sitting in Court alone (Jud. Act, 1873, s. 39). Also any Commissioner of Oyer and Terminer, Assize, Gaol Delivery, and Nisi Prius. (Ex parte Fernandez, 6 H. & N. 717; 10 C. B. N. S. 3; 30 L. J. C. P. 321; 7 Jur. N. S. 529, 571; 9 W. R. 832; 4 L. T. 296, 324; In re McAleece, Ir. R. 7 C. L. 146.) And the Superior Courts of Law and Equity in Dublin, and the Court of Session in Scotland.

But whether a judge sitting at chambers is "a Superior Court,"

and has such power to commit for contempt, may well be doubted. Wilmot, C.J., was clearly of opinion that a judge at chambers had such a power, as appears by the very learned judgment which he intended to deliver in R. v. Almon (Wilmot's Opin. and Judgments, 253), but it was not delivered in fact, the case having dropped on the resignation of the then Attorney-General, Sir Fletcher Norton. But there is no instance reported of a judge at chambers himself inflicting fine or imprisonment. He invariably reports any insult offered to him at chambers to the full Court, and leaves it to the Court to punish the offender. And in R. v. Faulkner (2 Mont. & Ayr. 338; 2 C. M. & R. 533; 1 Gale, 215), Lord Abinger, C.B., states most distinctly that a judge at chambers has no power to commit for contempt. Sect. 39 of the Jud. Act, 1873, seems in no way to enlarge the powers of a judge at chambers; and its concluding sentence certainly implies that a judge at chambers is not "a Court," and in so far confirms Lord Abinger's opinion. In the analogous case of the Court of Review, it has been decided that a single judge has no power to commit for contempt, except when sitting as the Court. (Ex parte Van Sandau, 1 Phillips, 445; Van Sandau v. Turner, 6 Q. B. 773; compare, also, In re Ramsay, L. R. 3 P. C. 427; 7 Moo. P. C. C. N. S. 263; Rainy V. Justices of Sierra Leone, 8 Moo. P. C. C. 47; Macartney v. Corry, 7 Ir. R. C. L. 242.) Hence the better opinion appears to be that a judge at chambers cannot safely commit summarily for a contempt of himself; although, of course, he constantly issues at chambers writs of attachment after notice to the party in default under Order XLIV. (See Salm-Kyrburg v. Posnanski, 13 Q. B. D. 218; 53 L. J. Q. B. 428; 32 W. R. 752.)

And à fortiori no official or special referee (Jud. Act, Order XXXVI. r. 51), and no arbitrator (3 & 4 Will. IV. c. 42, s. 40), can commit for contempt.

The Colonial Courts of Record are also Superior Courts, and possess the power of instantly committing for contempt in all the above cases; and no appeal lies from such a commitment to the Privy Council. (Crawford's Case, 13 Q. B. 613; 18 L. J. Q. B. 225; 13 Jur. 955; In re McDermott, L. R. 1 P. C. 260, 2 P. C. 341; 38 L. J. P. C. 1; 20 L. T. 47; Hughes v. Porral and others, 4 Moore, P. C. C. 41.) But if it appear on the face of the writ that the Court had exceeded its jurisdiction (In re Ramsay, L. R. 3 P. C. 427;