Wallis v. Talmadge — 10 Paige Ch. 443

Majority

p. 443

Wallis vs. Talmadge and others.

Headnote

A party who is in contempt for not answering the complainant’s bill, may purge his contempt by putting in either a plea or an answer to the whole bill, and , paying the costs, after the service of the first or ordinary process of attachment to compel an answer.

But if the defendant wishes to put in a plea after the attachment with proclamations has been returned, he must make a special application to the comt for leave to do so, in addition to the payment of costs.

A defendant who is in contempt for not answering, cannot purge his contempt by putting in a demurrer, after an ordinary attachment has been issued against him. But he must either plead to, or answer, the whole bill, unless the court, upon special motion for that purpose, sees fit to give him leave to demur.

Where a party, who is in contempt for not answering, tenders a plea, or answer, to the complainant’s bill, and offers to pay the costs of his contempt as soon as the same can be ascertained, the acceptance of such plea, or answer, will not be a waiver of the proceedings for the contempt, in case such costs are not afterwards paid pursuant to sue o er.

p. 444

1843. November 21.

This case came before the court upon an attachment against the defendant N. P. Talmadge for a contempt in not answering the complainant’s bill, and upon an application to discharge the attachment; and also on a cross motion, by the complainant, to take the plea, put in by the defendant N. P. Talmadge after the service of the attach-, ment, off the files for irregularity. The defendant was arrested upon the first process of attachment for want of an answer; and before the return day of the process he put in a sworn plea to the whole bill, and served a copy thereof on the complainant, which copy was subsequently returned as irregular. A few days afterwards the defendant’s solicitor again tendered a copy of the plea, and oifered to pay the costs of the proceedings for the contempt upon being informed of the amount 5 but the complainant refused to accept the plea upon payment of costs.

H. W. Warner, for the complainant.

M. Porter, for the defendant.

The practice in relation to putting in a plea after the defendant is in contempt for want of an answer, is correctly stated by Mr. Barbour. (1 Barb. Ch. Pr. 119.) A plea is a special answer, and may be put in, upon payment of costs of the contempt, after the service of the first or ordinary attachment to compel an answer. (Hamilton v. Hibbert, 2 Sim. & Stu. Rep. 225.) But by one of Lord Clarendon’s orders, originally adopted by the commissioners of the great seal during the time of the commonwealth, it was provided that after a contempt duly prosecuted to an attachment with proclamations returned, no commission to answer should be made, nor any plea or demurrer admitted, but upon motion in court, and affidavit made of the party’s inability to travel, or other good matter to satisfy the court touching that delay. (Beames’ Orders, 178.) That order never having been annulled, if the defendant wishes to put in a plea after the attachment with proclamations has been returned, he must make a special-

p. 445

application to the court for leave to do so, and upon good cause shown ; in addition to the payment of the costs of the contempt.

The defendant, however, cannot purge his contempt for not answering, in any stage of the proceedings, after an attachment has been issued, by putting in a demurrer to the whole or any part of the bill. He must, therefore, even upon a common attachment, either plead to or answer the whole bill | unless the court, upon special motion for that purpose, shall see fit to give him leave to demur. (Viger v. Lord Audley, 2 My. & Craig. Rep. 49.) Here the defendant had a right to plead, upon payment of the costs of his contempt j and the acceptance of the plea would not have been any waiver of the proceedings for the contempt, in case the costs had not been paid pursuant to the offer! ( Woodward v. Tremaine, 9 Sim. Rep. 301.)

The" application, therefore, to take the plea off the files must be denied j and the application to discharge the defendant from the attachment must be granted, upon his paying to the complainant his taxable costs of the proceedings for the contempt, up to the time of the offer to pay the same which was made by the defendant’s solicitor. Such costs must be paid within ten days after service of the taxed bill.