ture, when the writings from which the copies were made are not before the court, ought not to be permitted. While to enable a witness to give his opinion as to hand

writing, he need not have seen the person write, it being sufficient if he has seen handwriting under such circumstances as to put it beyond doubt that it was genuine, when such witness has, while in the employ of a party as a detective, to obtain testimony in a case, gained his knowledge of the writing of the other party by the admission of such party that two pieces of writing the witness saw were genuine, held, that his testimony as to the character of the writing was properly excluded.

A witness was shown for the first time in court three volumes, purporting to contain the statute law of France. They were issued with notes by a private author and had no official authentication. The witness testified that he had been a practicing lawyer in France from 1837 until 1862, and left that country in 1863, that the volumes (two dated in 1859 and one in 1877) constituted a printed copy of the statutes of France as they existed when he practiced there: that they were commonly received in the judicial tribunals of France as evidence of the existing laws thereof; that he had no doubt they were an exact copy of the French statutes, but that he had not looked into the books save at the title page. Held, that the exclusion of this evidence as proof of the statute law of France in 1871 would not be considered error. It does not appear to be the law that a vessel sailing from an English port is 'presumed to sail under the English flag.

J. H. Choate and W. H. Secor, for respondents. FOLGER, C. J. This is an action of ejectment, brought to recover possession of lands once of William R. Hynes, now deceased. He died intestate. The plaintiffs claim to be his widow and his sons, respectively. If that be fact, the right to maintain the action cannot be denied. Whether it be the fact depends upon the validity as a marriage contract of what took place in his life-time between the intestate and the plaintiff who now claims to be his widow, and at times before the birth of the other plaintiffs. Enough took place at those times, if it had been done in the territory of this State, to have made a valid contract of marriage. Enough took place afterward to furnish a presumption, under the laws of this State, of a prior legally formed and subsisting marriage relation. By the law of this State a man and a woman who are competent to marry each other, without going before a minister or magistrate, without the presence of any person as a witness, with no previous public notice given, with no form or ceremony, civil or religious, and with no record or written evidence of the act kept, and merely by words of present contract between them, may take upon themselves the relation of husband and wife, and be bound to themselves, to the State and to society as such, and if after that the marriage is denied, proof of actual cohabitation as husband and wife, acknowledgment and recognition of each other to friends and acquaintances and the public as such, and the general reputation thereof, will enable a court to presume that there was in the beginning an actual and bona fide marriage. Brinkley v. Brinkley, 50 N. Y. 184, and cases there cited.

But what passed between the intestate and the adult plaintiff took place out of the territory of this State Part of it took place upon English soil, and it is conceded that it did not make a lawful marriage according to the laws of England. Part of it took place upon the sea, in a vessel coming from an English port and crossing the channel to a French port. Part of it took place in France.

In some state of the case here might come in the question, whether, if the acts which would make a

valid marriage when done in this State are done outside its bounds, and not in accordance with the law of the place where done, they will make a relation which will be upheld as a valid marriage by the laws of this State.

But this question we need not decide. There is no proof of what is the law of marriage in France, and we will not presume that it is different from that of this State. Monroe v. Douglas, 5 N. Y. 447; Savage v. O'Neill, 44 id. 298. There is no proof of the nationality of the vessel in which the parties crossed the channel, and we will not presume that it was that of a country whose law of marriage has been proved in this case to be different from that of this State, even if we are required to hold that a vessel on the seas has with it the law of marriage of the nation whose flag it flies. There was enough in the testimony of what took place between the parties at sea and between them, their friends, acquaintances and the public, while they were in France, to sustain the verdict of the jury, that they were husband and wife in accordance with the law of this State. U. S. Trust Co. v. Harris, 2 Bosw. 75.

Though they cohabited in England before crossing the channel, the testimony, while it does not prove a marriage in accord with English law, shows enough for a jury to find therefrom that there was the purpose and form of marriage, that there was a refusal on the part of the woman to commence a meretricious cohabitation, and yielding on the part of the intestate to her demand for marriage before cohabitation should be had.

A marriage having been thus found on proof enough to sustain the verdict, the legitimacy of the minor plaintiffs as the sons of the intestate is beyond dispute in the case at this time. The judgment for the plaintiffs is to be sustained, unless error is shown by some of the other points made by the defendants.

First. The defendants contend that the General Term declined to use the power it had to set aside the verdict and grant a new trial. We are not able from the record to discover that it did so; if we turn to the opinions delivered, we find that matter discussed and a conclusion reached. We cannot disturb the judgment on that ground.

Second. It is claimed that the judgment for the entire mesne profits had been taken against two of the defendants, without proof of the possession by them, or either of them, of the entire premises recovered. We do not find in the record that this point was brought to the attention of the trial court. The motion to dismiss the complaint was general-that the plaintiffs had failed to make a cause of action against the defendants. The motion to direct a verdict was the same. The requests to charge do not mention it. One exception to the charge speaks of the direction to the jury to find the rental value, but it does not bring to the attention of the court the specific objection now made.

Third. It is claimed that the charge was erroneous in saying to the jury that it was essential to find whether the alleged marriage in Cleveland street was entered into by the intestate with the intention of effecting a marriage under the laws of the State of New York, and with the intention of returning to this State with the adult plaintiff as his wife. The error set up in the points is that there was no evidence in the case on which the jury could rest that finding. Without going into details, we think that there was testimony. strong it was, we need not say.

How

Fourth. The court did not allow the witness Loader to testify that the handwriting of the signature to the lease of the premises in Leverton street was that of the adult plaintiff. The witness had never seen her write; he had no knowledge of her handwriting, save that got by looking upon two writings other than the

ception, a likeness is brought forth of the object set before the camera. Still somewhat for exact likeness will depend upon the adjustment of the machinery,

It does not appear from the case that the trial court determined whether he was qualified to speak as an expert. We will assume that he was, and that had the trial court thought it needful to pass upon the question it would have held that he was; yet, in our judgment, it was not proper to receive his testimony as that of an expert and by a comparison of handwritings. An expert in handwriting, when speaking as a witness, only for a comparison of handwriting-that is, with two pieces of it in juxtaposition under his eye-should have before him in court the writing to which he testifies and the writings from which he testifies, else there can be no intelligent examination of him either in chief or cross, nor can there be any means of meeting his testimony by that of other witnesses. This requirement is included in the rule that there can be no comparison of handwriting, unless the pieces of writing by which comparison is made are properly in evidence in the case for some purpose other than that of being compared. Randolph v. Loughlin, 51 N. Y. 456; Dubois v. Baker, 30 id. 355; Miles v. Loomis, 75 id. 288.

The nearest approach to having before the witness at the trial writings by which comparison had been or was to be made, was the bringing of the photographic copies. There was no proof of the details of the process by which they were taken, nor as to the accuracy of the work. We think that a comparison of a signature in dispute with such photographic copies of other writings, for the purpose of allowing an opinion from an expert as to the character of the signature as real or feigned, when the originals from which the copies are made are not brought before the jury, and may not be shown to other witnesses, ought not to be permitted. Photographs that have been taken of persons found dead have been admitted in evidence in this State in aid of other proofs of identity, but not alone. They were characterized as slight evidence in addition to other and more reliable testimony. Ruloff v. People, 45 N. Y. 213. A photographic picture was more unreservedly admitted as evidence upon the question of identity of person in Udderzook v. Commonwealth, 76 Penn. St. 340, and in another case, when the genuine signature and the disputed signature were both brought into court, magnified photographic copies of each, together with the originals, were submitted to the inspection of the jury, and it was held not to have been error (Marcy v. Barnes, 16 Gray, 162); but copies of letters in a letter book, produced by impress or by a machine, have been rejected. Conner v. Eastman, 1 Cush. 189.

It would be carrying the matter much further to permit an expert to compare photographic copies of signatures, and therefrom to testify as to the genuineness of a disputed signature. We may recognize that the photographic process is ruled by general laws that are uniform in their operation, and that almost without ex

manipulator, and is so delicate a matter as the reaching of judicial results by the comparison of writings through the testimony of experts, it ought to be required that the witness should exercise his acumen upon the thing itself which is to be the basis of his judgment; and still more, that the thing itself should be at hand to be put under the eye of other witnesses for the trial upon it of their skill. The certainty of expert testimony in these cases is not so well assured as that we can afford to let in the hazard of error or differences in copying, though it be done by howsoever scientific a process; besides as before said, there was no proof here of the manner and exactness of the photographic method used. It was not right to receive Loader's evidence as that of an expert.

The witness was also offered as one having acquaintance with the handwriting of the adult plaintiff. All his meaus of knowledge have been stated. The testimony was finally rejected after the objection made to it that it was a collateral fact whether the lease was signed by the plaintiff, and that the defendants had proved by her that she had not signed it. The objection is not well put in, claiming that the defendants proved by the plaintiff that she did not sign the lease. At one time she said she did not recognize the signature to it as hers, but she would not say it was not hers, while she would not admit that it was. At another time she was explicit in denial; but her testimony on this head was not conclusive. Neither can we assent that the fact sought to be proved was a collateral fact in a sense that precluded the defendants from offering any other testimony upon it than that of the plaintiff herself. She was the witness of the defendants, to be sure, and they could not impeach her. But if she was mistaken in her testimony, or forgetful so that she could not speak as to a matter, the defendants were not shut out from proving the fact, if material by other witnesses. It was material if this plaintiff, during the time that as she now claims she was the wife of Hynes and entitled and bound to bear his name, was entering into written contracts in another name, which was that of the wife or widow still unmarried of another man. The testimony offered tended to prove that; we think therefore that that objection was not good.

The prior objection was in effect that Loader had not shown that he was acquainted with the signature of the plaintiff. Testimony as to handwriting is testimony of opinion. Any person acquainted with it may be permitted to give his opinion of it. The acquaintance need not come from having seen the person write. It may be formed from seeing writing under such circumstances as put it beyond doubt that it was a true signature. In this case the witness Loader had seen writing admitted by the plaintiff to be hers; thus he had seen her genuine handwriting. If the case was not so confined as that the correctness of the holding at the Circuit would hang upon whether the view of one piece of genuino handwriting would qualify one to speak as a witness as to the genuineness of another and a disputed signature, we find authority to show that a holding rejecting the testimony would be incorrect. Hammond v. Varian, 51 N. Y. 398; Gawells v. Alexander, 4 Esp. Cas. 37. The competency of a witness is not determined by the degree of his knowledge. If he has had means of becoming acquainted with the handwriting in question, he is competent to speak, and tho weight of his testimony is for the jury.

The objection, however, was broader than that, and covered all the circumstances in which Loader had been placed with regard to this handwriting. It appeared that he was, by calling, a private detective,

and had gone to England as such in the employ of the defendants after the commencement of this action; that it was while in the pursuit of evidence against the plaintiffs that he learned of this bank book writing, and while engaged in taking the evidence, in behalf of the defendants, of a witness, on commission, that he saw the writing, and heard the admission of the plaintiff that it was made by her. His acquaintance with her handwriting was from an examination of these two pieces of it, and it was formed while he was a hired agent in quest of testimony with which to combat the plaintiff's case, and of testimony to be made from the handwriting of the adult plaintiff. It is not to be distinguished from a case of genuine writings furnished to a person to enable him to become a witness, to a disputed signature. It is clear that if the genuine writings had been made or chosen for his inspection by the party who called him as a witness so as to qualify him to speak, his testimony to be based upon an acquaintance got from view of them would not be received. Stranger v. Earle, 1 Esp. N. P. C. 14; Tome v. Parkersburg R. R. Co., 39 Md. 36, 17 Am. Rep. 540, and it has been held at nisi prius that when the acquaintance is formed from the view of writings admitted by the attorney of the writer to be genuine, the witness will not be allowed (Greaves v. Hunter, 2 Carr.& Payne, 477); though on the other hand, when the genuine writing from which the witness got his knowledge was to a paper filed in the cause of the opposite party, the testimony was allowed. Smith v. Sainsbury, 5 id. 196. These cases exemplify how lacking in uniformity are the rulings on this matter, and how delicate a question it is to handle. The last two cases are not directly in point, inasmuch as it did not appear that the witness, when he saw the genuine writings, was seeking the means of making acquaintance, so that he might testify therefrom. A difference between the case in hand and those cited also from Espinasse and the Maryland Reports is, that in the latter two the genuine signatures were made or chosen by the parties who wished it to appear to the witness that the disputed signature was unlike the genuine ones inspected by him, while in the former the genuine signature is used in the case, and is admitted to be genuine by the party against whom the witness is called. Still it is a case of signatures selected in the interest of the party who calls the witness. They were pitched upon by the witness himself, who, in the hire of the party, had been sent in quest of hostile evidence, and that after the commencement of the action. All the stimulus upon and all the impulses of his calling were against impartiality in selection of specimens. The distinction is taken in the Fitzwalter Peerage case, 10 Cl. & Fin. 193, between the testimony of a witness who, intending to be a witness, has inspected genuine documents for the purpose of forming an acquaintance with the characteristics of a certain handwriting, and that of one who in the course of business, without having in view the being a witness, has used the same documents and thus got an acquaintance. judgment the evidence is open to the objections that have been held fatal to testimony as to handwriting created post litem motam. We think, that upon all that transpired on the trial in the testimony of Loader and the objections made, the trial court erred not in ruling out the question. The Legislature of this State has this year (Laws of 1880, ch. 36) passed an act which is intended to allow proof of signaturo by comparison of handwritings, and which perhaps will forestall for the future much discussion of this topic. That statute, however, is probably yet to be the subject of judicial interpretation.

In our

Fifth. What we have just said applies to the defendants' offer of testimony as to the handwriting in the Book of Registry of Births. Nor is there force in the position of the defendants that the plaintiffs then waived objection to the competency of the witness to

speak of handwriting. The appeal book speaks, at the folio where the testimony is rejected, of a general objection. But it is plain it is a continuation of the same objection that had been before made to that testimony. It would be a forced supposition that the defendants' counsel was misled at the trial, and thereby omitted to bring forward other kindred testimony that he held in reserve.

Sixth. The next point is that of the rejection of the offer to read from the books claimed to contain the law of France. It is well enough to consider it, though the result we reach is not so determinate as may be wished for. There were shown to the witness two volumes of a printed work, and a single volume of another work. He said that the two were the French Code, and that the three were all the French acts, the five Codes and State laws of France. The very books thus shown to him he saw then for the first time. He had been a practicing lawyer in France from 1837 until 1862, and left that country in 1863. The date of the edition of the two volumes was 1859. The date of the last edition was 1877. He said that they constituted a printed copy of the Code of Statutes of France, as they existed when he practiced there; that he had occasion to use, and did use, the printed statutes of France every day in the courts of that country, and that he had not the slightest doubt that the two volumes produced constituted a printed copy of the statutes or book which was commonly received by the judicial tribunals of France as evidence of the existing laws thereof; that he had no doubt it was an exact copy of the French law; that it was the same thing, the only difference being in the notes of the author, M. Rogron. He would not say that that opinion was based upon an examination of the books, and did say that it was founded on reason. He first saw the volume in court on the day that he was examined, and had not looked into the books save at the title page; but he said that that very copy he would use before a French tribunal the first time he had occasion to quote the French law, and that the work of M. Rogron received therein as proof of the existing law. We have here given all of the testimony of the witness. It will be seen that the books he had before him were the publication of a private person. They were not proven to have been published by tho authority of France, nor does it appear that they purported so to have been. It was testified, however, that they were at the time spoken to by the witness received in the tribunals thereof as a proof of the then existing law.

The old and the new Code provide in nearly the same terms for a mode of proving the statute law of a foreign country (old Code, § 426, new Code, § 942). The new Code also (§ 962) permits the proof of an act according to the rules of the common law or by any other competent proof. We think that the testimony of this witness would not bring the offer to read the books within the rule of the common law. As to what that is held to be in England see Baron de Bodes' case, 8 C. B. (N. S.) 208, 250, et seq.; Earl Nelson v. Lord Bridport, 8 Beav. 527; Sussex Peerage case, 11 Cios. & Fin. 85, 111. To prove the written law of a foreign State by a printed book purporting to contain it, though the book is sustained by the testimony of a witness familiar with the law, was not permitted, so far as wo can find, in this State before the Codes (Packard v. Lill, 2 Wend. 411; see S. C., Hill v. Packard, 5 id. 375), and again it was held that to prove the statute law of a foreign State there must be produced a copy authenticated there, or a sworn copy (Lincoln v. Battelle, 6 Wend. 482), and such proof as was produced in our case, according to that decision, would not have been deemed equivalent to a sworn copy. Id. 483-4; Chamvine v. Fowler, 3 id. 173.

Even if that testimony would meet the requirement of the new Code (§ 942), for the time of which the wit

ness spoke, from 1837, when he was first licensed to practice, until 1862, when he ceased to practice, a question arises. The period for the existing law of which the trial court was seeking was from a late day in June, 1871, until the expiration of four weeks thereafter. It is claimed, however, that the law of France having been shown as it existed in 1862, we are to presume that it continued the same until the year 1871. Presumptions of the continued existence of the same state of things arise when the things are continuous in their own nature. They are founded on the experienced continuance or immutability for a longer or shorter period, of human affairs. What may be presumed of one country and one state of society may not so readily be presumed of another. Thus, at one time in England it was held that it will not be intended that a man alters his trade or profession, but by presumption he continues in it through life. Tuthill v. Milton, Yel. 158. It has been held that a partnership, an agency or a tenancy once shown to exist is presumed to continue until it is proved to have been dissolved; and so far has this been carried, that where it was admitted that a partnership had been in existence in 1816, it was, in the absence of all evidence to the contrary, presumed to be still continuing in 1838 (Clark v. Alexander, 8 Scott [N. R.], 161), which seems to us an extreme carriage of the rule. Would it do in the United States to base judicial action on that presumption in the breadth of it as stated in those cases? It has indeed been held, that the statute law of another State of this Union having been proven, it must be presumed to exist until shown by good evidence to have been repealed. Payrbaur v. Cantan, 3 Pick. 293. Statutes of our own State are read to the courts, and they stand as the law until a repealing statute is produced. This is however on the theory that the judges know what is the statute law of their own State, and need to hear it only to refresh their memory. Lincoln v. Battelle, supra. It may be that if the question was beforo us, whether in a case presenting it, that presumption should be made, we would feel obliged to make it. But then, even, there would arise the query, whether, by a true interpretation of the Code (§ 942), it must not be held to require, that as the existing law which may be proved is the law existing at the very time of the transaction that is in controversy, the proof to be received must be addressed directly to that time, and show by direct assertion that there was the book of statute laws now produced, admitted in the judicial tribunals of the foreign country as evidence of its law.

It will not fail to be noticed that the witness had not read these very books, nor a page of them, save the title page. It must have struck the circuit judge, as it strikes us, as difficult to conceive how one could testify that the contents of these books, issued from the press as a venture of private business, without the impress of public or official authority, contained the law of France as it existed at any given time, when he knew not from perusal what were the contents of the books. It is to be noticed further of one of them that it was issued in the year of 1877. It is impossible that this book, or a book of the same edition, could have been issued in 1862, and prior thereto, before the judicial tribunals of France, as evidence to them of the existing law of that State, and as the witness had not looked into the contents of the books, would not say that he had made an examination of them, and did say that he founded his opinion on reason, how could he satisfy the court that those contents had ever been spread before a French tribunal as evidence of the law? The most of which the witness could satisfy the court by the testimony he gave was this: That the work of the author, whom he named, was usually received in the courts of France as containing its law. Whether these books were the work of that author the witness had not informed

himself by a perusal of them. He knew no more of that than what the title page told him, assisted by his reason. Verily this is weak testimony on which to take printed books as evidence of foreign statute law, from the contents of them to draw material for an adjudication. Now though it is said by a text writer of repute (Taylor on Ev., 48, pp. 62, 63, 7th ed.), that in regard to foreign laws the functions of the judges and jury do not seem to be yet well distinguished, still it seems that it is the duty of the court to decide as to the complete knowledge of the witness, and as to the admissibility of the documents by which or as to which he speaks. Bristow v. Sequeville, 5 Ex. 275; Sussex Peerage case, supra; 8 Beav., supra. That duty was on the trial judge in our case, and we hesitate before we will say that he was in judicial error in not deeming this witness well enough informed of the contents of these books, or the books admissible as proof of French law. It is not plain that there was error in the ruling of the trial court.

We are not compelled to pass definitely upon these questions. If it be determined or conceded that the marriage law of France when the intestate and the adult plaintiff cohabited there, was not observed by them in making their marriage contract there, still the jury have found, as a specific verdict, that the parties did, while crossing the English Channel, enter into an agreement to take each other then and there as man and wife. As wo have already said, so far as appears in this case, this was a valid contract of marriage under the laws of this State, and the general verdict of the jury is thus sustained. 2 Bosw., supra. We need not therefore pass definitely upon the question raised by the offer of the defendants to read in evidence the book claimed to be the law of France in print.

Seventh. We now come to the allegation of error in the charge. The court charged the jury in substance that though the transaction between the parties in England was not a valid act or contract of marriage by the laws of that country, yet that if Hynes was a citizen of this State, and did that act with the intention of marrying in accordance with the law of this State, and of bringing the woman to this country to live with him as his wife, there was the foundation of a valid marriage relation. The jury found, on specific questions put to them, that the facts were in accordance with the suppositions put in the charge. The defendants duly excepted. This exception we do not deem it necessary to consider. If the propositions stated in the charge be wrong, yet the jury have by other specific findings established such facts in the case as must uphold their general finding that the adult plaintiff was the wife of Hynes. Other exceptions to the charge called to our attention by the points of the defendants have been passed upon incidentally, but sufficiently, by what we have said in the first part of this discussion.

Eighth. There are points made upon requests to charge and alleged refusals to charge as requested. The requests to charge are thirteen in number, which the court had charged the jury. The record shows that it remarked: Thero are certain requests to charge which I will briefly read. At the request of the defendants' counsel, I am asked to charge. [The court then repeated to the jury, in the language of the counsel, nine of the requests.] It did not in terms say that it did or did not give them to the jury as the law of the case; nor did it in terms say that it refused to charge the four requests that it did not read. The exception of the defendants was this: Separately, in each instance, to the refusal and neglect of the judge to charge requests. The court read to the jury all the requests upon which points are made, except the third and fifth. We infer that the court meant to charge the jury that the requests made to them, and which it read, were

well asked for. The third related to the alleged act of marriage in England, and the court had charged fully upon that. The fifth was that the presumption is that as the vessel sailed from an English port that she was an English vessel sailing under an English flag. We must infer that the court declined to charge this request. The defendants cite no authority to sustain it. We have not been able to find it so laid down as law.

There are noted upon the points two exceptions to the rejection of evidence. We think the court did not err therein. Wo have examined the case with minuteness and do not find that error which calls upon us to reverse the judgment.

A

CTION for limited divorce on the ground of cruelty, by Eliza Jane Walker against Joseph Walker. Defendant was ordered to pay alimony, whereupon he left the State. An order was thereafter made that he pay within five days, in default of which that his answer, which was a general denial, be struck out. Default being made, an order was made that his answer be struck out and a reference be had to take testimony as if there was no answer. This order was affirmed at General Term and defendant appealed.

S. Hand and D. T. Robertson, for appellant.
John B. Perry, for respondent.

FOLGER, J. The defendant, having refused or neglected to obey an important order of the court, was in contempt, and liable to punishment by reason thereof. The punishment inflicted by the court was by an order in the cause, to strike out the answer that had been put in by him, and to direct a reference to take proof of the matters stated in the order; the reference to proceed as if there had been no answer put in.

It is claimed that the court had no power to make that order; that every defendant has a vested right to make a defense to any action or suit or legal proceeding begun against him, and that ho cannot be deprived of it.

It is conceded by the defendant that the Supreme Court, on its equity side, has all the power and authority that formerly existed in chancery in England, and was continuously exercised by it. "The rule there must be the rule here," says Ch. Kent, "for I take this occasion to observe that I consider myself bound by those principles which were known and established as law in the courts of equity in England at the time of the institution of this court." Manning v. Manning, 1 Johns. Ch. 527-9. It is not to be denied that a court of equity may refuse to a defendant in contempt the benefit of proceedings in it, when asked by him as a favor, until he has purged himself of his contempt. See Brinkley v. Brinkley, 47 N. Y. 40-9, and cases there cited. But the rule has been held broader than that and enforced with much vigor. Ch. Baron Gilbert lays it down in his Forum Romanorum, p. 33, that "if the defendant appeared before the secundum decretum, he was liable to a mulct, for he could not be heard in the cause until he had cleared his contempt * * *." It is suggested in Cooper's Cases (temp. Colt, p. 209), that this is merely a statement of the practice according to the canon law. But the Chief Baron, says at

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another place (p. 71), that "the answer will not be received without clearing his contempts; and at another (p. 211), "So it is where a man hath a bill depending in court, and falls under the displeasure of the court, and is ordered to stand committed. Here, when his cause is called, if the other side insist he hath not cleared his contempt, nor actually surrendered his body to the warden of the Fleet, he must do both of these things before his cause can be proceeded in *." It is stated by Lord Eldon that it is a general rule, that a party who has not cleared his contempt cannot be heard. Vowles v. Young, 9 Ves. Jr. 173; Anonymous, 15 id. 174. The same is said with the addition of the words "in the principal case,' in 2 Com. Dig. Chy. Process D. 8, citing Practical Registry in Chy. 217. See, also, Heyn v. Heyn, Jacobs, 49; Clark v. Dew, 1 Russ. & Myl. 103. The rule in the Chancery of Ireland is stated thus: A party in contempt will not be allowed to oppose the relief sought by the plaintiff by contradicting the allegations of the bill or bringing forward any defense or alleging new facts. Anon. v. Lord Gort, 1 Hogan, 77; Valle v. O'Reilly, id. 199. And the rule as thus stated, is cited and approved in Mussina v. Bartlett, 8 Porter (17 Ala.), 277; see, also, Rutherford v. Metcalf, 3 Hayw. (Tenn.) 58, 61; and in Saylor v. Mockbie, 1 Withrow (9 Iowa), 209, 212, it was held that until the defendant had purged himself of contempt, the court might well refuse to receive his answer to the complainant's bill or to consider the matter set up.in it by way of excuse for refusal to obey the order. The reporter (Coop. temp. Colt, at page 211) cites in a note the case of Anon. v. Lord Gort, supra, and says of it: "The accuracy of some of these dicta may be doubted." He does not state as to which of them he queries. Many cases are collected in the note just above mentioned. Some of them show that the rule has not been vigorously applied in latter times (see King v. Bryant, 3 Myl. & Cr. 191, especially); but it does not appear that it has been abolished or abandoned entirely.

It seems, too, that the authors of the Revised Statutes thought that this power resided in the English Court of Chancery. In preparing the sections relative to the production and discovery of books and papers (2 R. S., p. 199, § 21, et seq.) they provided (§ 26) that in case of a party neglecting or refusing to obey an order, the court might strike out his plea and debar him from a defense; and they sought thus to assimilate the practice to that of the Court of Chancery (see rev. note, 5 Edm. Stats. 411). The Legislature gave its sauction to the proposed practice by passing into law the sections reported by the revisers. It is well to say here that Rice v. Ehle, 55 N. Y. 518, does not condemn this. That case holds that the pleading may not be stricken out, save on notice to the party (p. 523), and that the exercise of this power was legitimate was recognized by Marcy, J., in Birdsall v. Pixley, 4 Wend. 196. The power seems to have been exerted or recognized by the Supreme Court in several instances, without question made by appeal. Farnham v. Farnham, 9 How. Pr. 231; Barker v. Barker, 15 id. 568; Ford v. Ford, 41 id. 169.

We are brought to the conclusion that there has long been exerted by the Court of Chancery in England the power to refuse to hear the defendant when he was in contempt of the Court by disobeying its orders, and that that power was in the Courts of Chancery of this country.

We do not think that the case of Wayland v. Tyson, 45 N. Y. 282, and Thompson v. Erie Railway, id. 471, and others of like result, are in the way of this conclusion. They were not cases of contempt, nor were they equity cases. Besides, there the answer was stricken out, with no loophole left for relief to the defendant.

It is always in the power of the defendant, in a case like that in hand, to apply to the court and show that