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interfere with beyond the limitation as to time), to interfere with the possession of the official receiver or trustee in bankruptcy,* or for any person by an undertaking to indemnify, to induce a receiver not to interfere with the continuance of the business by the debtors, and where such a person was the solicitor to the debtors he was, not because he was a solicitor, but for the contempt, declared liable for the loss sustained by the estate through the continuance of the business.
But an order for a receiver ought to state distinctly on the face of it over what property the receiver is appointed, that persons may know what it is the officer of the Court is in possession of, f and the order itself may reserve the rights of prior incumbrancers, without any further application to the Court being necessary.
A motion ought not to be made for committal when a party has other means of working out his rights, and merely on the ground of the disturbance of a receiver, when the object is to compel payment of costs, after the question with respect to the possession has long been settled. ||
(2.) By judgment creditor and Sheriff. It is a contempt in a judgment creditor to instance the sheriff to seize, and in the sheriff to seize, property in possession of a receiver. I But there cannot be a disturb
* Ex parte Till. In re Mayhew, 1873, L.R. 16 Eq. 97; Ex parte Cochrane. In re Mead, 1875, 20 ib. 282; B.A., 1883, S. 42 (B.A., 1869, s. 34).
+ Ex parte Hayward. In re Plant, 1881, 45 L.T. 326 C.A. (account to be taken against the receiver jointly with the solicitor—Per curiam, the contempt was the more gross in that the contemner was a solicitor).
I Crow v. Wood, 1850, 13 Beav. 271.
Russell v. East Anglian Railway Co., 1850, 3 M'N. & G. 104; Lane v. Stern, 1862, 3 Giff. 629; Gardner v. Sharp, W.N., 1867, p. 65. See as to protection of sheriff against judgment creditor, Russell v. East Anglian Co.,
ance, and so a contempt, by strangers to the action, before a receiver is in possession ; a receiver becomes such, as against strangers, on giving security, and not by the mere direction for appointment, and the order being “that C. E. M., upon his giving security, be appointed receiver,” the taking of the chattels under a fi. fa., after the date of the order, but before the security has been given, is not a contempt.*
(c.) Interference with Sheriff.
A claimant to goods, lawfully entitled to them, and in whose possession they are at the time of seizure under a fi.fa., does not commit contempt because thereafter he removes the goods without force,t and where an officer of an inferior Court levied and took away goods, under the process of that Court, using no violence, and shewing no intentional contempt, the Court of Common Pleas held that there had been no contempt in law, although the Sheriff alleged that his officer was in possession of the goods. I
But it is a contempt in a claimant to use considerable violence towards the Sheriff's officers, and proceed with a
supra; Rock v. Cook, 1848, 2 Ph. 691, S.C. Rocke v. Cooke, 2 D.G. & S. 493 ; Onyon v. Washbourne, 1850, 14 Jur. 497 ; Try v. Try, 1851, 13 Beav. 422. On application by motion in the action in which the receiver was appointed, the Court may give liberty to issue execution on an undertaking to hold the proceeds and deal with them in accordance with any order the Court may make, or may give the applicant, the judgment creditor, a charge on the assets received, or to be received, by the receiver, on an undertaking to deal with the charge according to the order of the Court (Kewney v. Attrill, 1886, 34 Ch. D. 345, Kay, J.), or may
" make such other order as may be just (Lindley, Partnership, p. 554, ed. 5).
* Defries v. Creed, 1865, 34 L.J. Ch. 607; 13 W.R. 632; Edwards v. Edwards, 1876, 2 Ch. D. 291, C.A., reversing Malins, V.C., 1875, i Ch. D. 454, and approving Defries v. Creed. + Day v. Carr, 1852, 7 Ex. 883, Pollock, C.B. Platt & Martin, BB.
White v. Chapple, 1847, 16 L.J. C.P. 233
sale, and remove some of the goods, after seizure and the service of an interpleader summons, for to proceed with the sale is to frustrate the very object of the interpleader process.
If the Sheriff, acting in bad faith, seizes goods which he knows are not included in the fi. fa., then the owner removing them would not be guilty of contempt.t
* Note 1. to Article 111.-Can a party be hindered in seeking legislative enactment to avoid the obligation of an undertaking ?
London and Birmingham Ry. Co. v. Grand Junction Canal, 1835, 1 Ry. Ca. 224, where the Court having permitted works to proceed on the undertaking of the defendants that the Court should have the same power over the works after a trial as before, the defendants attempted the insertion of a clause in a Bill to take away that power, is the only case in which this question is considered. But in restraining persons by injunction from proceeding by Bill in Parliament the Court would be acting upon the person, and not upon the jurisdiction, so that there would be no interference with any privilege of Parliament, and such a jurisdiction ought to be exercised in a proper case. (Opinions to this effect expressed, upon applications for injunctions in actions
* Cooper v. Asprey, 1863, 32 L.J. Q.B. 209, Cockburn, C.J., Crompton, Blackburn, and Mellor, JJ. Per curiam, there wouid have been a contempt though no interpleader summons had been served. Day v. Carr questioned, and per Quain, J., Day v. Carr was questioned by the Common Pleas in Leycester v. Fletcher (not reported). But see Ex parte Page, 1810, i Rose 1 ; 17 Ves. 59, per Lord Eldon, L.C. If the Sheriff is commanded to seize the goods of C. D., and seizes the goods of A. B., is A. B., removing his goods without violence, and not contumaciously, doing an act of a tendency to interfere with the ordinary course of justice ?
† See Cooper v. Asprey, per Cockburn, C.J.; and ib. per Blackburn, J., so explaining Day v. Carr as to the judgment of Pollock, C.B.
to restrain corporations from proceeding by Bill in Parliament in breach of contract, by Lord Brougham, L.C., Ware v. Grand Junction Water Co., 1831, 2 Ru. & My. 470, 483, by Lord Cottenham, L.C., Heathcote v. North Staffordshire Ry. Co., 1850, 2 Mac. & G. 100, by Page Wood, V.C., Lancaster and Carlisle Ry. Co. v. North Western Ry. Co., 1856, 2 K. & J. 293, by Lord Chelmsford, L.C., Steele v. North Metropolitan Ry. Co., 1867, L.R. 2 Ch. 237, by Selwyn and Gifford, LL.JJ., In re L. and C.B.R. Arrangement Act, ex parte Hartridge, 1869, L.R. 5 Ch. 671, and by Bacon, V.C., Telford v. Metropolitan Board of Works, 1872, L.R. 13 Eq. 574, 594.) And the corporation, or the Directors, will be restrained from applying to Parliament so far as the application is ultra vires the corporation, or from applying the funds ultra vires in the promotion of a Bill. (Ware v. Grand Junction Co., ubi supra; Stevens v. South Devon Ry. Co., 1851, 20 L.J. Ch. 491; Att.-Gen. v. Lambeth Vestry, W.N., 1888, p. 19, North, J.; Att.-Gen. v. Rathmines, etc., Commissioners, 1889, 5 L.R. Ir. Ch. 114, Sullivan, M.R.). But a corporation will noť be restrained from proceeding by Bill, simply on the ground that someone's property would be injured if the Bill became law. (Ware v. Grand Junction Co., and Stevens v. South Devon Ry., ubi supra, per Lord Langdale, M.R.). Where the company was resident and transacted its business here, but its object and purposes were to deal in immovables in California, by Act of the Legislature of which State it was created, an order of Stuart, V.C., granting an injunction restraining the corporation from applying to the Californian Legislature, was reversed, because looking to the "domicil ” and objects of the corporation, the Court ought not to act as asked, at least, upon an interlocutory application, Knight-Bruce, L.J.; because it is not the practice to restrain persons from applying to Parliament, and there was no principle upon which the Court could be justified in restraining an
application to foreign Legislature, Turner, L.). (Bill v. Sierra Nevada Co., 1859, 1 D.G.F. & J. 177). See also Buckham v. Whitehaven Trustees, 1886, 55 L.T. 694 C.A.; Lindley, Company Law, pp. 323, 324, and note that the only orders made, and upheld on appeal, have been orders restraining applications ultra vires, and that in no case has any jurisdiction been asserted to restrain any proceeding by public Bill.
Note II. to Article III. Contempt by Arrest.
This contempt was generally punished by ordering the officer effecting the arrest to pay the costs of the application to discharge. The privilege from arrest rests on the principle that the process of the Court is not properly used for the purpose of withdrawing a witness or other person without whose presence full justice cannot be done (Montague v. Harrison, 1857, 3 C.B. (N.S.) 299, per Willes, J., S.C. 27 L.J. C.P. 24); it is the privilege of the Court and not of the party (Ib.; see Strathmore v. Laing, 1820, 2 Wils. and Shaw 1; Hare v. Hyde, 1851, 20 L.J. Q.B. 185; 16 Q.B. 394—mere spectator not entitled to be discharged on his own application-), and extends to every Court, whether superior or inferior (Montague v. Harrison, supra ; In re Freston, 1883, 11 Q.B.D. 545), and to the offices of the Court (Eyre v. Barrow, 1858, 27 L.J. Ch.784), in favour of all persons who are to take, or who have taken, a part in the proceedings in the case, whether civil or criminal, whether as witnesses, parties or jurymen, or even of the defendant in a criminal case (Gilpin v. Cohen, 1869, L.R. 4 Ex. 131), and whether attending voluntarily or under compulsion of process (Meekins v. Smith, 1791, 1 Hy. Bl. 636; Ex parte Byne, 1813, I V. & B. 316; Montague v. Harrison, supra), but not, it would seem, in favour of a common informer, a mere voluntary prosecutor