1833. BLACKWELL v. TATLOW. a breach of the peace occurring in his presence, but if the breach be the subject of complaint, he must proceed upon oath. I think that the present case affords another exception, both upon principle and upon the practice of the courts of law; although the question has never been the subject of judicial decision in this place. There is here a return by the sheriff, the subordinate return from the bailiff of the liberty within his bailiwick being incorporated by him in his return, and being indeed itself the return of an officer who is quasi sheriff of the liberty. That return is of a caption being made in the regular execution of the process of the Court. The return is regular in every respect; it sets forth the fact of the bailiff having the return of the writs within the liberty exclusively; it states the caption, and it states the rescue in terms, adding many circumstances of great aggravation. It is necessary to give credit to such return if formally and solemnly made; otherwise the issuing of one process would only be the prelude to issuing another, grounded upon the same kind of evidence. The Court does not, indeed, proceed without ground; it does not attach upon a statement or a suggestion that its process has been contemned and its officer obstructed, any more than it attaches upon a suggestion, that there has been a default in obeying any of its orders. It is agreed that there must be something to shew that the contempt has been committed; the only question is, whether an affidavit is necessary, and whether the return is not sufficient; and I think it would be of dangerous consequence to the process of the Court if the return were held insufficient. As for the risk or inconvenience to the party, it is now admitted that the proceeding is ex parte, and that though an affidavit were required, he could have no notice nor any opportunity of answering it. His security, there fore, fore, cannot be said to be materially lessened by substituting in this ex parte proceeding the return of the sheriff for the affidavit of the officer or other person to the facts returned. The courts of common law have always treated a return of a rescue as equivalent to a conviction. It was so considered in Rex v. Pember (a), after an inquiry as to the practice of the Crown Office, the result of which was, that process issues from that office immediately upon the return, as upon a conviction. It was so considered in Rex v. Elkins (b), where the only doubt expressed was upon the old practice, cited from a case in Salkeld, of fining all persons returned as rescuing in the same sum in all cases. That case, and another in Strange (c), as well as the whole head of Rescous (d) in Comyn's Digest, clearly shew that such returns are conclusive, and cannot be traversed; the Lady Russell and Wood's Case. (e) From the case in Salkeld it appears, that affidavit of rescue, in the Common Pleas at least, is held of no avail; there must be a return. It would be a singular anomaly if that return, which is of such high avail on one side of the hall, as to have the full force of a record of conviction, and lead to instant execution, were here to have no weight at all. But I am not called upon to say whether or not the return made is traversable; it is used only as the ground for attaching the party and bringing him before the Court to answer the charge; it is not treated as a final adjudication, but in every respect as mesne process. He is brought before the Court accordingly, and he has then an opportunity of answering, and of defending himself. Nor (a) Hardwicke's K. B. Ca. 112. (b) 4 Burr. 2129, (c) Sheather v. Holt, 1 Str. 531. (d) D. 4, 5, and 6. 1833. BLACKWELL v. TATLOW. 1833. BLACKWELL V. TATLOW. Nor do I say, that he may not, even after he has been turned over, be aided or released upon application to the Court. At law the punishment is at once ordered, and, it may be, a fine imposed, which is conclusive, and the only remedy of the party is by action for a false return. Here, in one sense, the proceeding may be termed remediless, inasmuch as the arrest is irrevocable. But the party has the same right to apply for his discharge, and to shew that he was not guilty of the contempt, as he would have if committed upon affidavit; moreover, he has the same kind of redress against those, through whose misrepresentation he has been committed, for the Court will, on cause shewn, refer it to the Master to inquire how far he has been injured. It is not, therefore, contended, that the return is binding upon the Court as at law, and that it amounts to a judgment, upon which execution must instantly follow; but only that it entitles the Court to bring the party before it, and put him upon his defence. Instead of giving the return the greatest force known in the law, that of the record of a final judgment, I only give it the least force, that of the foundation of mesne process. Neither do I say, that any return of a contempt not amounting to a rescue would have even this force. Unless a caption and rescue were actually returned, the case would not be brought within the authorities at law; and a return of such a contempt as rendered it impossible to execute the process may come within the same principle. Whether or not that would be sufficient without affidavit, I am not called upon in this case to decide. Upon principle I can see no difference; but there is no authority to warrant me in so extending the rule. All other contempts of the process of the Court, however gross, must, upon the authority of the rules and of the cases cases in this Court, be dealt with by evidence upon oath; that is, by affidavit. A little consideration will at once shew that there is nothing in the judgment I am now giving inconsistent with the authorities to which I referred in the outset, whether of the orders or of the decisions. None of these contemplate the case of a rescue returned by the sheriff, or indeed of any contempt returned at all. Lord Bacon's seventy-seventh order plainly supposes the only evidence before the Court to be an affidavit of a contempt towards the process of the Court, and it makes no provision for the case of that contempt appearing on the face of the return. Moreover, it makes the commitment proceed "forthwith," upon such affidavit, whereas in other contempts, as disobedience of decrees, &c. the affidavit only entitles the Court to attach, for the purpsse of examining the party touching his offence. The force which I am now attributing to a return of the former and worse sort of contempt, is no greater than the order gives to an affidavit in the latter and lighter kind; and much less than the order gives to an affidavit in the worse kind. The like observation is applicable to Lord Clarendon's orders touching commitment. In the anonymous case in Atkyns (a), and in Ex parte Clarke (b), there was no return at all; and nothing was there said as to the effect of a return. Nor must it be forgotten, that in the latter case the order for commitment is made upon affidavit, and absolute in the first instance, without hearing the party. Surely then it is not at all inconsistent with this to hold that a regular (a) 3 Atk. 219. Ꮓ Ꮞ return (b) 1 Russ. & Mylne, 563. 1933. BLACKWELL V. TATLOW. 1833. BLACKWELL บ. TATLOW. a breach of the peace occurring in his presence, but if the breach be the subject of complaint, he must proceed upon oath. I think that the present case affords another exception, both upon principle and upon the practice of the courts of law; although the question has never been the subject of judicial decision in this place. There is here a return by the sheriff, the subordinate return from the bailiff of the liberty within his bailiwick being incorporated by him in his return, and being indeed itself the return of an officer who is quasi sheriff of the liberty. That return is of a caption being made in the regular execution of the process of the Court. The return is regular in every respect; it sets forth the fact of the bailiff having the return of the writs within the liberty exclusively; it states the caption, and it states the rescue in terms, adding many circumstances of great aggravation. It is necessary to give credit to such return if formally and solemnly made; otherwise the issuing of one process would only be the prelude to issuing another, grounded upon the same kind of evidence. The Court does not, indeed, proceed without ground; it does not attach upon a statement or a suggestion that its process has been contemned and its officer obstructed, any more than it attaches upon a suggestion, that there has been a default in obeying any of its orders. It is agreed that there must be something to shew that the contempt has been committed; the only question is, whether an affidavit is necessary, and whether the return is not sufficient; and I think it would be of dangerous consequence to the process of the Court if the return were held insufficient. As for the risk or inconvenience to the party, it is now admitted that the proceeding is ex parte, and that though an affidavit were required, he could have no notice nor any opportunity of answering it. His security, there fore, |