COURT OF NEW *Mar BRUNSWICK.
SIR W. J. .J.-I am of opinion the motion to quash should be granted without costs, on the ground that there was no final adjudication; and, in my opinion, the party appellant was led into error by the action of the court, and should not suffer therefor. J.-I am of opinion that the motion to quash must be granted. The rule nisi was in the alternative for an attachment or to commit the appellant for contempt. It was made absolute generally, and the rule absolute does not specify which alternative was granted.
As the granting of the rule was followed up ELs by an attachment, we must assume that it was intended to make the rule absolute in the alternative Sn which asked for this writ; more especially as the appellant did not move against the writ for irregularity, but gave bail to it. Then this writ of attachment is merely the first step in the procedure to punish for contempt of court.
It is only a process to bring the party to be attached into court in order that he may answer. The proceedings subsequent to the execution and return of the writ include the bringing of the body into court, the requiring the defendant to answer to the contempt and to answer interrogatories and there is then a formal adjudication, followed by sentence. Until there has been an adjudication as to the defendant's guilt or innocence of the contempt there is no final judgment from which an appeal can lie.
There seem to be two modes of proceedings for contempt of court-one formal and plenary, the other summary. The former mode of proceeding is that which has been adopted in the present case.
I proceed altogether upon what appears on the face of the proceedings; the rules nisi and absolute, and the writ of attachment itself-the exigency of which is that the appellant shall be attached in order that he may " appear and answer."
Surely when the stage of appearance in answer to process of this kind has alone been reached, and there has not even been a hearing, there cannot be said to be any final judgment. In the opinions delivered by some of the learned judges they do not advert to the distinction between the summary mode of procedure and the more formal mode of proceeding adopted in the present case. I agree with the Chief Justice, that there should be no costs.
[VOL. IVI. J. concurred.
J.-I would quash this appeal, on the ground that the judgment appealed from is not a final judgment.
GWYNNE
J.-In Easter Term, 1887, a rule was issued out of the Supreme Court of the Province New Brunswick, Crown side, exparte George F. Baird, the above respondent, calling upon the above appellant, the editor, publisher and propriptor of the " St. John Globe" a newspaper printed and published in the city of St. John, in the Province of New Brunswick, to show cause in Trinity Term then next why an attachment should not be issued against him, or why be should not be committed for contempt of court for writing printing and publishing in the issue of the said " St. John Globe " newspaper, on the 18th March preceding, an article under the caption of "The Queen's Election," and certain other articles in other issues of the newspaper mentioned in the rule
Upon this rule being served and the matter being brought up again before the court, if it should appear that the appellant had written and published the articles complained of, or any of them, all that remained to be done by the court, after hearing the appellant show cause in, person or by his counsel as he was YOL. XVI.]
called upon by the rule to do, was to pronounce judgment either convicting the appellant of the offence and passing appropriate sentence upon him for such offence, or otherwise dealing with the case as justice might require and to the court should seem meet. From the judgment and expression of opinion as delivered by the learned Chief Justice of the court, and which is made part of the case laid before us, it appears that the appellant appeared in obedience to the above rule and showed cause thereto, as he was called upon by the rule to d6; for the learned Chief Justice there says
He then states these reasons, and adds:
He then proceeds to deal with those objections, and to define the law as to contempt of court and to apply it to the circumstances of the case before him; and referring to the proceedings which were before Mr. Justice Tuck, and which formed the subject of comment in the articles complained of, he concludes: From the above it appears beyond doubt that in the opinion of the learned Chief Justice the appellant, by writing and publishing the articles complained of (as admitted by him), was guilty of a contempt of court; and if that opinion had been embodied in the rule of court issued thereupon, which is the subject matter. of this appeal, the appellant would have been, beyond all doubt, convicted of the offence of contempt of court with which he had been charged, and by the rule nisi cited to appear in court and answer; but the learned Chief Justice concludes his judgment thus:
Not, it is to be observed, for committal of the appellant, as for an offence of which he had been convicted. Mr. Justice Fraser expressed his concurrence in the judgment of the learned Chief Justice.
Mr. Justice Wetmore, after referring to the circumstances of the case, the nature of the proceedings before Mr. Justice Tuck, and a point that had been argued that he had been acting without jurisdiction, and that, therefore, the articles constituted no contempt of court, concludes thus :
And he agreed with the Chief Justice that an attachment should be ordered.
Now as the appellant was before the court and showed cause to the rule nisi, and admitted the publication by him of the articles complained of, and as a majority of the court were clearly of opinion that the publication of the articles, so admitted by the appellant to have been published by him, was a contempt of court, it does not clearly appear why judgment should not have been pronounced, convicting the appellant of the contempt and passing an appropriate sentence therefor, instead of ordering an attachment to issue, the object of which appears, from the judgment of Mr. Justice Palmer, to be still to keep the ,,s
!matter of the rule nisi sub judice, and to be an interlocutory proceeding only. He says
Now, whether or not the articles contain matter which, being published as admitted, constitutes a contempt of court, is a question the determination which depends upon the construction by the court of the articles themselves-and the publication having been admitted by the appellant, and counsel who showed cause for him having been heard, I fail to see why the matter should not have been considered as quite ripe for adjudication, without any further opportunity of showing cause being given to the appellant. However, the court seems to have adopted the view expressed by Mr. Justice Palmer as to the object of the attachment being issued-for the order made by the court, and which is the subject this appeal, simply is that the rule nisi be made absolute and upon the rule so made absolute the court has issued a writ of attachment, addressed to the sheriff of the city and county of St. John commanding him to attach the appellant, so that he may have him before the court on a day named " to answer for certain trespasses and contempts .brought against him "-thus adopting the view expressed by Mr. Justice Palmer as being the object and purpose of the attachment ordered, namely, as an interlocutory proceeding to enable the appellant to show cause why he should not be " convicted " of the offence of contempt of court and to defend himself against the charge brought against him. It appears, -therefore, that the order of the court, which is the subject of this appeal, is not a final adjudication in the matter, and that therefore it is not appealable to this court. The appeal, therefore, must be quashed and with costs. Solicitors for appellant :
Solicitor for respondent:
Appeal quashed without costs. Weldon, McLean & Devlin. L. A. Currie.