contempt. Of process for bill, he is then said to be in contempt; and the processes of contempt are awarded against him, which are an attachment in the nature of a capias; an attachment with proclamations, and a commission of rebellion. If this last fails to return him, the court sends a serjeant at arms in quest of him, and if he Sequestration. eludes this search, a sequestration issues against his personal estate, and the profits of his real estate, after which the plainBill then taken tiff's bill is to be taken pro confesso, and a decree to be made pro confesso. accordingly; but if he is taken upon this process, he is committed to prison till he puts in his appearance or answer (ƒ). Of process corporate, The process against a body corporate is by distringas; and against a body if a peer is the defendant, the chancellor sends a letter missive, requesting his appearance, on failure of which a sequestration. issues against his lands and goods. The same process (except the letter missive) issues against a member of the house of peer, and member of the house of commons. Of suing out process. 1 Wm. 4, c. 36. Practice where the defendant appears. Demurrer in equity. What pleas plead. commons. Where the ordinary process of subpoena cannot be served, as in the case of the defendant absconding, a day is appointed him to appear to the bill of the plaintiff; which must be inserted in the London Gazette, read in the parish church where the defendant has lived (g), and fixed up in the royal exchange; and if the defendant does not appear upon that day, the bill must be taken pro confesso. answer. After appearance, the defendant is to demur, plead, or A demurrer in equity is nearly of the same nature as a demurrer in law; being an appeal to the judgment of the court, whether the defendant shall be bound to answer the plaintiff's bill, as for want of sufficient matter of equity contained therein; or where the plaintiff, upon his own showing, appears to have no right; or where the bill seeks a discovery of a thing which may cause a forfeiture of any kind, or may convict a man of any criminal misbehaviour. If on demurrer the defendant prevails, the bill will be dismissed; but if it be overruled, the defendant is ordered to answer. A plea may be either to the jurisdiction of the court, or to defendant may the person of the plaintiff, if under disability, or in bar, showing some matter why the plaintiff can demand no relief. But a man may plead as to part, demur as to part, and answer the May plead as to part, demur (f) See now 11 Geo. 4, and 1 Wm. 4, altering and amending the laws regarding commitments by courts of equity for contempts, and taking bills pro confesso, the provisions of which are extended by 2 Wm. 4, c. 58. (g) By 7 Wm. 4, and 1 Vict. notices theretofore usually read during divine service are to be fixed upon the church doors. residue. No exceptions to the formal minutia in the pleadings as to part, and are allowed which may be amended. answer the residue. Which must be signed by deny, or confess, or justify the facts. counsel, and of exception to answer. Of cross bill. Of amendment of bill after answer. An answer is the most usual defence that is made to a Of the answer. plaintiff's bill. It is given in upon oath, on the honour of a peer or peeress; but where there are amicable defendants, their answer is taken without oath, by consent of the plaintiff. If the defendant lives within twenty miles of London he Swearing to must be sworn before one of the masters of the court; if the answer, farther off there may be a dedimus potestatem, or commission, to take his answer in the country. An answer must be signed by counsel, and must either deny or confess all the material parts of the bill; or it may confess and avoid, that is, justify or palliate the facts. If one of these is not done, the answer may be excepted to for insufficiency, and the defendant be compelled to put in a more sufficient answer. If the defendant has any relief to pray against the plaintiff he must do it by an original bill of his own, which is called a cross-bill. After answer put in, the bill may be amended by adding new parties or new matter, and the defendant is obliged to answer afresh to such amended bill. But this must be before the plaintiff has replied to the defendant's answer, whereby the cause is at issue; for afterwards, if new matter arises which did not exist before, he must set it forth by a supplemental bill. There must be a bill of revivor, where any of the parties die, by which the suit is abated. And a bill of interpleader, where a person who owes a debt or rent to one of the parties in suit, but till the determination of it he knows not to which, desires that they may interplead that he may be safe in the payment. In the last case it is usual to order the money to be paid into court. If the plaintiff finds sufficient matter confessed in the Of the hearing. defendant's answer to ground a decree upon, he may proceed to the hearing of the cause upon bill and answer only. But in that case he must take the defendant's answer to be true in every point. Otherwise he must reply generally to the answer, averring his bill to be true and the answer to be the reverse. Upon which the defendant rejoins, averring the same on his side, which is joining issue upon the facts in dispute, which facts are proved by the depositions in writing of witnesses; Depositions. for which purpose interrogatories are framed. The witnesses Interrogatoare compellable by process of subpoena to appear and submit to examination, as in the courts of common law; and when their depositions are taken, they are transmitted to the court. If witnesses to a disputable fact are old and infirm, it is usual Bill to per Of supplemenof revivor. tal bill and bill Of bill of interpleader. ries. petuate tes timony of old or infirm wit nesses. Publication of depositions. Setting cause down for hearing. to file a bill to perpetuate their testimony, although no suit is depending. When all the witnesses are examined, the depositions may be published by a rule to pass publication; after which they are open to the inspection of all the parties, and copies may be taken of them. The cause is then ripe to be set down for hearing, which may be done by the plaintiff or defendant before either the lord chancellor or the master of the rolls (h). Either party may be subpoenaed to hear judgment on the day of the hearing, and if the plaintiff does not attend, his bill is dismissed with costs; or if the defendant makes Of dismissal of default a decree will be made against him. A plaintiff's bill may also be dismissed for want of prosecution, which is in the nature of a nonsuit at law, if he neglects to prosecute his suit in due course. Of subpoena to hear judgment. bill for want of prosecution. Cross causes. Method of hearing causes. The decree. Interlocutory or final. When there are cross causes, on a cross bill filed by the defendant against the plaintiff in the original cause, they are generally heard and decreed on at the same time. At the hearing the bill and answer are opened by counsel, and the case stated on both sides, the depositions being read by one of the six clerks. After which the court pronounces the decree, which is either interlocutory or final. It is seldom final, as if any matter of fact is strongly controverted, a feigned issue is by a jury as to directed to the bar of the court of king's bench to try such fact by a jury at the assizes upon a feigned issue; so if a question of mere law arises, it is the practice to refer it to the opinion of the common law judges, upon a case stated for that purpose, who hear it solemnly argued by counsel on both sides, and certify their opinion to the chancellor, upon which certificate the decree is usually founded. Of issue tried certain facts. Question of law may be left to the common law judges. Of reference to the master. Of final hear Frequently long accounts are to be settled, incumbrances and debts inquired into, which matters are by the decree on the first hearing referred to a master in chancery, to examine and report upon, whose report may be excepted to, disapproved, and overruled; otherwise it is confirmed and made absolute by the court. When all issues are tried and settled, and all references to ing and decree. the master ended, the cause is again brought to hearing upon the matters of equity reserved, and a final decree is made, the performance of which is enforced (if necessary) by commitment of the person or sequestration of the party's estate. And if by this decree either party thinks himself aggrieved, he may petition the chancellor for a re-hearing; upon How decree enforced. Rehearing. (h) Or the vice-chancellor. which all the evidence taken in the cause, whether read before, or not, is now admitted to be read. After the decree is signed and enrolled it cannot be reheard or rectified, but by bill of review, or by appeal to the house of lords. After enrolment, bill of review or appeal to the house of lords. A bill of review may be had upon apparent error in judgment appearing on the face of the decree, or by special leave Bill of review. of the court, upon oath made of the discovery of new matter or evidence, which could not possibly be had or used at the time when the decree passed. house of lords. An appeal to parliament, that is, to the house of lords, is Appeal to the the dernier resort of the subject, who thinks himself aggrieved by an interlocutory order or final determination in this court; and it is effected by petition to the house of peers, and not by writ of error, as upon judgments at common law. But no Gilb. Rep. 155, new evidence is admitted in the house of lords; for it is a 156. practice unknown to our law (though followed in the spiritual courts), when the superior court is reviewing the sentence of an inferior, to examine the justice of the former decree by evidence that was never produced below. BOOK THE FOURTH. OF PUBLIC WRONGS. CHAPTER I. OF THE NATURE OF CRIMES AND THEIR PUNISHMENT. A CRIME, or misdemeanor, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it. This general definition comprehends both crimes and misdemeanors, which, properly speaking, are mere synonymous terms, though in common usage the word "crimes" is made to denote such offences as are of a more atrocious dye; while smaller faults and omissions of less consequence are comprised under the gentler names of "misdemeanors" only (a). Definition of a crime or mis demeanor. (a) In the English law, misdemeanor is generally used in contradistinction to felony, and misdemeanors comprehend all indictable offences which do not amount to felony; as perjury, battery, libels, conspiracies, &c.-Mr. Christian's note to Bl. Com. v. 4, p. 5. Distinction and civil in juries. Every crime includes a public wrong and a civil injury; and in some cases the offender may be compelled to make satis faction for each separately. The distinction of public wrongs from private, of crimes between crimes and misdemeanors from civil injuries, consists in this: that private wrongs or civil injuries are an infringement or privation of the civil rights which belong to individuals, considered merely as individuals; public wrongs, or crimes and misdemeanors, are a breach and violation of the public rights and duties due to the whole community, considered as a community, in its social aggregate capacity. In all cases the crime includes an injury; every public offence is also a private wrong, affecting the individual as well as the community. Thus treason, in imagining the king's death, involves in it conspiracy against an individual, which is also a civil injury; but as in its consequences it principally tends to the dissolution of government, and the destruction of the order and peace of society, this denominates it a crime of the highest magnitude. Murder is an injury to the life of an individual; but the law of society considers principally the loss which the state sustains by being deprived of a member, and its pernicious example. Robbery may be considered in the same view it is an injury to private property; but were that all, a civil satisfaction in damages might atone for it; the public mischief is the thing, for the prevention of which our laws The object of have made it a capital offence. Upon the whole, the law has a double view in taking cognizance of wrongs, viz. to redress the party injured, and to secure to the public the benefit of society, by preventing or punishing every breach and violation of those laws, which the sovereign power has established repetition of it. for the government and tranquillity of the whole. criminal laws twofold: 1. To redress the injury done : and 2. To prevent the The power of punishment vested by general consent in the magistrate. That general consent renders punishments lawful. : The right of the temporal legislature to inflict discretionary penalties for crimes against the law of nature, which in a state of nature is vested in all mankind, is in a state of society transferred from individuals to the sovereign power, whereby men are prevented from being judges in their own causes, an evil which civil government was intended to remedy. Whatever power, therefore, individuals had of punishing offences against the law of nature, is now vested in the magistrate alone, who bears the sword of justice by the consent of the whole community. As to offences merely against the laws of society, which are only mala prohibita, and not mala in se, the temporal magistrate is also empowered to inflict coercive penalties for such transgressions; the lawfulness whereof is founded upon this principle, that the law by which individuals suffer was made |