10 Paige Ch. 443 | New York Court of Chancery | 1843
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-
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.
