Everett v. Prythergch. [*363] *EVERETT v. PRYTHERGCH. Contempt.-Scandal.-Defendant.-Practice.-Impertinence. 1841: 11th Nov. A defendant, though he is in contempt for want of answer, may except to the bill for scandal, but not for impertinence. 1841: 18th Dec. Scandal. A creditor filed a bill against the debtor's executor, stating, first, that the defend. ant was a person of bad character, of drunken habits and violent behavior, and then adducing instances in support of that statement; and praying that the assets might be administered under the direction of the court, and for an injunc tion and receiver. Held, that the general statement and the instances, were relevant to the relief asked, and therfore were not scandalous. THE defendant, after an attachment had issued against him for want of answer, filed exceptions, to the bill, for scandal and impertinence; and afterwards obtained an order, as of course, referring the bill and exceptions to the master. All the exceptions, except the ninth, were for scandal and impertinence: the ninth was for impertinence only.(a) Mr. Girdlestone and Mr. Barber, for the plaintiff, now moved that the exceptions might be taken off the file and the order be discharged, for irregularity, on the ground that the defendant, when he filed the exceptions and obtained the order, was in contempt, and, therefore, could not be an acting party in the cause, except for the purpose of clearing his contempt. Howard v. Newman,(b) Beavan v. Waterhouse.(c) Mr. Romilly, for the defendant, said that there were many exceptions to the rule that a party in contempt could not be heard (a) It is scarcely necessary to mention that the court considers matter that is scandalous, to be impertinent also. (b) 1 Molloy, 221. (c) 2 Beav. 58. Everett v. Prythergch. except for the purpose of clearing his contempt: King v. Bryant,(a) Wilson v. Bates,(b): that a bill, answer, or other proceeding in a cause, might be referred for scandal at any time: Fenhoulet v. *Passavant, (c) Anon., (d) Ex parte [*364] Simpson,(e) Nedby v. Nedby,(ƒ) Anon.(g) THE VICE-CHANCELLOR:-The Anon. case in 5 Ves. is a direct authority that a defendant, although he has taken out an order for time to answer, may refer the bill for scandal: and the question is whether, so far as the present question is concerned, there is any substantial distinction between a party's having taken out an order for time to answer (whereby he submits to answer,) and a party's being in contempt for want of answer. Notwithstanding Lord Bacon's 48th Order says: "They that are in contempt, especially so far as a proclamation of rebellion, are not to be here (heard qu.) neither in that suit nor any other, except the court, of special grace, suspend the contempt;" yet Lord Cottenham, C., in Bates v. Wilson, mentions cases in which a party, though in contempt, was entitled to be heard. Until the reference for scandal is disposed of, the defendant cannot tell what he ought to answer; and, in my opinion, although he is in contempt, he has a right to call upon the court to tell him what it is that he is bound to answer. I think, therefore, that, upon the principle of the Anon. case in 5th Ves., the defendant, in this case, is entitled to proceed with the reference so far as scandal is concerned; that is to say, he is entitled to go on with *all the exceptions ex- [*365] cept the ninth. That exception is for impertinence only the other exceptions are for scandal and impertinence; (a) 3 Myl. & Craig, 191. (b) Ibid. 197. (c) 2 Vez. 23. (d) Ibid. 631. (e) 15 Ves. 476. (f) Ante, Vol. VIII. p. 334. Everett v. Prythergch. whatever is scandalous being impertinent also. But, as there is some degree of authority for the application, I cannot give the defendant the costs of it. The bill was filed by creditors of a testator against the defendant Prythergch and his wife, (the latter being the executrix of the will,) stating that the testator's personal estate was insuffi cient or barely sufficient to pay his funeral and testamentary expenses and debts; and that the defendants were persons of bad character, of drunken habits, violent and disorderly in their conduct, and in a state of great poverty. The bill then proceeded to state various particulars in support of the above gen. eral allegation respecting the character, conduct and circumstances of the defendants; such as that they were frequently drunk five times in a week; that they often quarrelled with each other; that they had surreptitiously left a house which they rented at a small weekly sum, leaving 15s. of the rent unpaid; that the husband went about very shabbily dressed, with his clothes torn, and with holes in his shoes; that he frequently pawned his own and his wife's clothes; and that he had expressed himself willing to perjure himself if he could get anything by it, &c., &c. The bill prayed for an account, and for the administration of the testator's estate, and for an injunction to restrain the defendants from collecting the assets, and for a receiver The bill, as is stated in the preceding part of this report, was excepted to for scandal and impertinence: and, the Mas[*366] ter having allowed all the exceptions, *except those which related to the above general allegation, the plaintiffs excepted to his report. Mr. Girdlestone and Mr. Barber, in support of the exceptions to the report, contended that all the allegations in the bill respecting the character, conduct and circumstances of the defendants, were relevant to the relief prayed; as they tended to show that the defendants were not fit to be trusted with the testator's Everett v. Prythergch. property: that the case of a creditor was different from that of a legatee; for the latter was a mere volunteer, and, therefore, there was some reason for saying that he was not entitled to complain of the person to whom the testator had thought proper to entrust his property: that, as the Master had considered the general allegation not to be scandalous, he ought to have come to the same conclusion with regard to the particular allegations respecting the character, conduct, and habits of the defendants; for the principle that was applicable to the former, was equally applicable to the latter. Mr. G. Richards and Mr. Romilly said that no one had ever heard of notoriety of bad character (that is, what the neighbors thought of an individual) being proved either at law or in equity; that, when an executor applied for probate of a will, the Ecclesiastical Court never inquired into the moral character of the party making the application: that it was sufficient that the testator had thought proper to entrust that individual with the administration of his property; and that a person might be hon est, though he was poor and shabbily dressed. THE VICE-CHANCELLOR:-I am under the necessity of differ ing from the Master. *I think that it is a most delicate part of the juris- [*367] diction of this court to determine how strong a plaintiff is at liberty to make his case. He frames it as he pleases, and states a number of circumstances in support of it: but I am not aware that the court has ever abridged him of his right to state as much as he thinks fit, merely because some of those circumstances might have been sufficient. In the case of Morrice v. Salisbury, which occupied the court the greater part of a fortnight during the last term, a party was sought to be charged with certain sums of money which it was alleged that, but for his wilful default, he might have received: and, in order to get a decree under which the defendant might Everett v. Prythergch. be so charged, the plaintiff entered into a great number of instances of default, where one or two instances would have been sufficient for the purpose. But I considered that it was not the duty of a judge to limit the number of instances which a plaintiff may think proper to adduce for the purpose of supporting his case and, therefore, I heard the whole throughout. Now, here the bill is filed to have such a proper administra tion of the testator's estate as will enable the plaintiff's and the other creditors, to obtain payment of their debts. And, in order to show that this is a proper case for the court to grant an injunction and a receiver, the plaintiffs, first of all, state, in a general way, that the executrix and her husband are persons of bad character, drunken habits and great poverty: and then, in order to support that general charge, a great number of particu lars are detailed which tend to show their poverty, drunkenness and outrageous conduct. A plaintiff, as I said before, [*368] has a right to make his case as *strong as he can: and, when there is a question about the administration of assets, it is surely of importance to make out that the person who has the power over and the sole management of them, is a person of violent conduct and drunken habits. His duty is to collect the assets and to pay the debts; and, where peaceful conduct is so indispensable, it is immaterial for a plaintiff, who is seeking for an injunction and a receiver, to enter into instances of violent conduct: and it is obvious that the assets cannot be safe in the hands of a person who is in the habit of being drunk. The plaintiffs have obtained an injunction on affidavits verifying the allegations in the bill; and, when the cause comes on to be heard, the court must determine whether that injunction ought to be continued or not; and, if those charges which have been deposed to on an interlocutory proceeding, are proved at the hearing, the court will continue the injunction and the receiver. Therefore it is necessary, with a view to the decree, that the matters objected to should be stated. So that, on the whole, I am of opinion that the Master has erred in allowing any of the exceptions for scandal and impertinence. |