
    Gant vs. Gant.
    Wo answer can be received from a defendant in chancery who stands in contempt, till he is discharged of such contempt by order of the chancellor. The clerk has no such power.
    Nancy Gant filed her bill in the chancery court at Trenton, against W. Gant, for a divorce and alimony. The bill alleges that she owned slaves and other property at the time of her ¡(narriage with defendant, and that the defendant owned slaves and other property. It charges the defendant with adultery. The complainant charges that the defendant was about to remove the property from the State; and also charged that she was entitled to personal estate from the hands of the representative of the estate of her deceased husband, and that if he received it, he would dispose of it. She therefore prayed an injunction against the removal of the slaves or disposal of the same, and to restrain him from receiving the portion which belonged to her not reduced to possession.
    An injunction was ordered. Subpoena was not served, and injunction not served. The slaves were removed beyond the limits of the State.
    Affidavit was made that defendant, with full knowledge of the issuance of the injunction in the case, had sold the slaves to vendees who had likewise knowledge of the issuance of the injunction, and that Gant concealed himself to avoid service of it; and that the ven-dees took the slaves forcibly out of complainant’s possession, and removed them to parts unknown. The attachment was issued, but returned not found. The bill was taken pro confesso. This order was set aside by the clerk without affidavit, and an answer of defendant denying the charge filed at the February rules, 1848, and at the January term, 1849, the chancellor, Jones, dismissed the cause for want of prosecution. The complainant appealed.
    
      W. R. Harris and R. P. Rains, for complainant.
    
      S. Williams, for defendant.
   McKinney, J.

delivered the opinion of the court.

The chancellor, on motion of the defendant’s solicitor, dismissed the bill in this case for want of prosecution, Under the act of 1801, ch. 6.

The bill was for a divorce. Process of subpoena to answer was issued but service thereof was evaded. An attachment for contempt for violation of an injunction was also issued in the cause, the service of which was likewise evaded.

It appears that at the February rules, 1848, an answer purporting to have been prepared and sworn to in the State of Mississippi, was received by the clerk and master at rules in his office, and was endorsed by him as filed in the cause. It seems that no notice was taken of the answer; nor does it appear from the record before us that any step was taken in the cause by the complainant after the same was filed. During the second term after the answer was received by the clerk, the motion to dismiss the bill for want of prosecution was allowed. In allowing this motion the chancellor erred. The defendant was in contempt, and being so, his answer could not be received, nor could he be heard to make a motion to dismiss till the contempt was cleared; and for the purpose of being discharged from the contempt, an order of the chancellor in court was necessary, unless the contempt had been waived. 1 Dan. Ch. Pr. 559, 560; 1 Smith Ch. Pr. 62, note a, 2d Am. Ed.

The clerk Rad no authority to discharge the contempt or to receive the answer. It was improperly placed on file, and the complainant had the right to treat it as a nullity.

The order of the chancellor will be reversed and the cause be remanded and reinstated upon the docket of the ehaucery court.  