« PreviousContinue »
inconvenience at a trial.* Nor is it a contempt for one to stand out against the other eleven and refuse to agree, for a minority of one is as much entitled to abide by his own opinion as a minority of fivert But it is a contempt in a juryman to fail to attend when duly summoned, or to refuse to be sworn, or to affirm, as the case may be; or, after being sworn, to absent himself from his fellows and the deliberations of the jury; to receive a bribe ; to receive evidence from either party not given in Court on oath ; to eat or drink or refresh himself without the leave of the Court ; to refuse to give a verdict, or to combine with other jurors to deceive the Court, as by agreeing on two verdicts, and concealing one if the Court accepts the other as a sufficient verdict.1
* Bushcll’s Case, 1670, Vaugh. I35 ; 6 St. Tr. 999.
1' Ib., per curiam.
I The County juries Act, 1825 (6 Geo. IV., c. 50); the Juries Act, 1870 (33 & 34 Vict., c. 77); Laybum v. Crisp, 1838, 8 C. & P. 397; earlier cases cited and approved, Bushell’s Case', Vaugh., at p. I51 ; 2 Hawk. P.C., c. 22. It seems that it is not the practice to hear counsel on behalf of ajuror who has been fined for non-attendance, but counsel may read affidavits stating circumstances in extenuation. Came v. Nicoll, 1834, 3 Dowl. P.C. 115-C.P. If a summons is left at the usual place of abode of a juror with some person there, that person is deemed the agent of the juror to receive the summons, and to apprise his principal thereof; or, if that were impossible, to attend and explain to the Court the reason for the non-attendance of thejuror. Ex parts Clnrges, 1827, r Y. & J. 399. But if the summons is left at the wrong house, or if the party summoned has left his house and is abroad, and the fact of his absence is communicated to the summoning officer at the time of service, the fine will be remitted. Ex part': Ford, 1827, 1 Y. & J. 400; Ex part: Brown, 1827, ib. And the Court has granted several applications to remit fines imposed on persons summoned as special jurors upon aflidavits stating that the party summoned was absent from his usual place of residence from before the delivery of the summons until after the time to which the summons applied had expired. Reporter’s note to Ex part: Clarges, ubi supra. The fine is usually £10; after deducting costs and expenses there would not be a large
(if any) balance of the remitted fine. It is better to see to it, that someone shall attend and explain.
§ iii. Witnesses.
It is contempt in a witness not to attend the Court at the time and day stated, and appear when his name is called,* having been personally served with a subpcena, and been paid or tendered his proper expenses.1' But a witness ought to be allowed a sufficient time to set his affairs in orderI, and if, upon the service of the subpoena, the plaintiff undertakes to let the witness know if he is wanted, the plaintiff, not giving notice, should not afterwards apply to commit for non-attendance.§
It is likewise a contempt in a witness to refuse to be sworn, or to affirm, as the case may be, or to prevaricate in his evidence when sworn,!| or, unless he can shew some exemption in his favour, to refuse to answer upon any question of fact material and relevant to the issue, the Court deciding upon the relevancy of the question, and the sufficiency of the excusefi
* Tumor v. Warren, I579, Cary, 161; Hammond v. Stewart, 1726, 1 Str.51o; Wyatt v. Winlzworth, 1729, 2 Str. 810; S.C. Wyat v. Wingfurd, 2 Ld. Ry. 1528; Barrow v. Humphreys, I820, 3 B. & Ald. 598; Dixon v. Lee, 1834, 3 Dow]. P.C. 259; Rex v. Fenn, 1835, 3 ib. 546.
1' Smalt v. Whitmill, 1737,: Str. 1054; Chapman v. Pointon, 1741, ib. 1150; Wakefield': Case, 1736, Ca. t. Hardw. 313; Fuller v. Prenetiee, 1788, 1 H. Bl. 49; Ca. t. Hardw. 313; I H. Bl. 49; Ashton v. Hnigh, 1814, 2 Ch. Rep. 201 ; Ex parle Daniel O’Cannell, 1839, 3 Jur. 980; R.S.C., Order xxxvii., rr. 5, ct seq.
I Hammond v. Stewart, ubi supra. (Service at 2 p.m. in the City to attend Middx. Sittings same day.)
§ Rex v. Plunket, I762, 3 Burr. I329. As to non-attendance as a witness it is immaterial that the witness is also a party. Powell v. Nevitt, 1886, 55 L.T. 728, Kay J.
|| Bl. 4 Com. 281, 283.
1T Ex parte Fernandez, 1861, 30 L.J. C.P. 321, 332, 333. As to exemptions, St. Dig. Ev., Arts. I08 A., et seq. If the witness attends the Court he cannot refuse to answer on the ground that he has not been served, Cutler v. Wright, W.N., 1890, p. 28, Stirling, J. As to the exemption on the ground of incrimination, if it once appear that the witness is in peril, great latitude will be
§ iv. Attempts to Influence the Court.
Every private communication to a judge, for the purpose of influencing his decision upon a matter publicly before him, is a contempt; and it is immaterial that no personal disrespect to the judge was intended by the person making the communication.’*
So it is a contempt to send money to a judge as a bribe,’r to dedicate and send to ajudge a pamphlet commenting on pending proceedings,I to write and send a threatening or insulting letter to a master as an interference with a pending matter,§ or to write to a judge telling him that he dare not exercise his authority over the writer.il
§ v. Abuse of the process of the Court.
It is a contempt to pervert the Sovereign’s writ, or the process of the Court, to the purpose of private malice, extortion or injusticell And all suitors amenable to the authority of the Court, who by force or fraud wilfully pervert the course of justice, are liable to punishment as for contempt.“
So it has been held a contempt to try a feigned issue
allowed him in judging for himself of the effect of a particular question. Reg. v. Bayes, 1861, 30 L.J. Q.B. 301; Reg. v. Kinglake, 1870, 22 L.T. 316 (pardon—corrupt practices); Ex part: Reynolds, 1882, 20 Ch. D. 294 C.A.; Chitty's Archbold, p. 640.
* Re Sombre, 1849, 1 Mac. & G., 116, 122, per Lord Cottenham, L.C.
1- Martin v. Martin, 1747, 2 Russ. & My]. 674, n. Lord Hardwicke, L.C. (suitor). See v. Campb. Litrs, 45 (ed. 1846).
115.: parte }’ones, 1806, 13 Ves. 237. See also Roach v. Garvan, 1742, 2 Ark. 469.
§ Re Keane, Lord Cranworth, L.C., 23 Dec., 1857; A. 270, Seton, i., 651 (solicitor—rule nisi to strike off the rolls). In re Ludlow (Leehmere Charlton’: Case), 1837, 6 L.J. N.S. Ch. 185; 2 M. & C. 316, Lord Cottenham, L.C. (counsel).
11' Bl. 4. Com. vi., xv.
‘"* Smith v. Bond, 1845, 14 L.J. Ex. 114, 115, per Pollock, C.B.
without the consent of the Court,* and it is a contempt to bring a mere fictitious action, not to determine a right or controversy, but in deceit of the Court, and to raise an evil fame of a third person, and if these things are so the reality of the debt does not make a material difference,1' or to fabricate a fictitiousI special case for the opinion of the Court, although no fraud is intended,I or to put in an absurd plea of infancy on purpose to create delay,§ or for a nominal plaintiff, secured against costs and without beneficial interest, to act in collusion with the defendant in injury of the real plaintiff," or for a petitioning creditor to lend himself to a solicitor, to become his instrument, under a guarantee against expense,1l or for a solicitor to insert scandalous matter in an affidavit, and put counsel's name thereto, without authority,** or, apparently, for the plaintiff to cause to be delivered a false account of his place of abode, contrary to the requisition of a judge's order,Tl' or for counsel to make himself a party to a fraud on the Court by conspiring with a solicitor to induce a party to make affidavits which the counsel knows to be substantially untrue, and which are used to delude the Court.II
" Hoskins v. Berkeley, 1791, 4 T.R. 402 (proceedings stayed). 1-Coxe v. Phillips, I736. See Ca. t. Hardwicke, 237 (proceedings stayed and vacated—-parties and attorneys committed—-person aggrieved, though not a
party, may move as amicus eurirz). 3 In re Elsam, 1824, 3 L.J. K.B. 75. In this instance the person fabricating
the case was an attorney personally interested, and the judgment would have operated on parties not aware of the proceedings. Fined £40.
§ Lord v. Thornton, 1615, 2 Bulst. 67 (attached).
|| M’Gregor v. Barrett, 1848, 6 C.B. 262 (attached).
1[Ex pane Wilson, 1819, Buck. 306, Leach, V.C.
" Bishop v. Willis, 1749, 5 Beav. 83, n. (committed and ordered to pay costs of scandal).
11' Smith v. Bond, 1845, 14 L.J. Ex. 114.
I1 Linwood v. Andrews, 1888, 58 L.T. 612; W.N., i1888, p. 81, Kay, J.
(committed, and ordered to pay costs of motion) ; see also Stat. West. 1, c. 29 ; BI. 3 Com. 29.
In the same manner, a breach of an undertaking by the party giving it is a contempt'*', or to attempt substantially to escape the effect of an undertaking by procuring legislative enactmentfr
Service of snbpeena held, in the circumstances, a breach of an undertaking not to molest.I
To send to a ward's solicitors letters, not of bond fide complaint in any matter, but merely with the intention to annoy the 'ward, is a breach of an undertaking not to communicate with the ward directly or indirectly, and a contempt.§
§ vi. Intezference with Parties, Witnesses and Others.
It is the right of all suitors to approach the Court free from all restraint or intimidation, and those who have duties to discharge in a Court of justice are protected by the law, and shielded on their way to the discharge of such duties, while discharging them, and on their return therefrom.|}
So it is a contempt to threaten a petitioner with the publication of a statement of facts concerning her unless she withdraws her petition,1l or for the defendant to send
"' Att..Gm. v. Manchester and Leeds Ry. Co., 1839, 3 Jur. 379, Lord Cottenham, L.C. See Ord. xii., r. 18 (Solicitor—Admiralty).
1' London §'I3irmingham Ry. Co. v. Grand }’|mcti0n Canal, 1835, 1 Ry. Ca. 224, 241,per Lord Cottenham, L.C. But qu. if anything could be done to hinder the party applying to Parliament. See Note at end of this Article.
I Lawford v. Spicrr, 1856, 2 jur. N.S. 564, Stuart, V.C.
§ Scott v. Pndwick, 1887, 3 T.L.R. 675, Chitty, J. See S.C. 1888, 4 ib. 569. \/Vhilst a person sues or defends as a pauper . . . . any person who takes, or agrees to take, or seeks to obtain from him any fee profit or reward, for the conduct of his business in the Court, shall be guilty of a contempt of Court. R.S.C., Ord. xvi., r. 27.
|| Relllzzlock, 1864, 33 L.j. M. 205, 206, per Sir J. P. Wilde, j.O.; In re .'}'0lmson, 1887, 20 Q.B.D. 68.
1|’ In re Muloek, 1864, 33 L.J.M. 205, S.C. Export: Chetwymi, Re Muloelz, lu jar. N.S. 1188.