
    Lane v. Elizey.
    February Term, 1810.
    1. Contempt — Right of Party to Plead. — While a defendant is in contempt, no plea, or demurrer, can be admitted, but upon motion in open Court.
    2. Same — Same—Scire Facias to Revive Decree. — A defendant’s being in contempt to the first process of the Court, is not a contempt to the decree, and forms no obj ection to his pleading to a scire facias brought to revive that decree.
    3. Same — Same—Same.—A defendant may plead to a scire facias brought to revive a decree, which was obtained against him by default, that the original contract was usurious.
    There was a decree by default, in this •case, to foreclose a mortgage: to this decree there was a bill of review filed by Ellzey, upon the ground of usury, and claiming to be released from the interest, which was decreed accordingly; and from which Ellzey appealed: the Court of Appeals reversed this decree, because the bill of review was improperly admitted by the late Chancellor, to an interlocutory decree.
    The case then carne back to this Court, and Bane being dead, a sci. fa. was sued forth to revive, in the name of his executors, which being returned executed, the defendant offered to show, by plea, that the revival, thereby sought, ought not to be had, because of the usury in the original •contract: to this plea the plaintiffs objected.
    1. Because the defendant being in contempt, should not be allowed to plead; and, *2. Because the plea goes to matter anterior to the decree. These points were argued and submitted.
    
      
      See monographic note on “Contempts” appended to Wells v. Commonwealth, 21 Gratt. 500.
    
   By the Chancellor.

If the defendant was in contempt to the decree of the Court, he would not be allowed to make any application, but upon such conditions as should be just: but he is not. It is true, the decree was obtained by default; but this was the consequence of his contempt to the first process of the Court; and should not be considered as a contempt to the decree, which was obtained in a shorter time on that account; whereby the plaintiff was really benefited. The rule of practice is, that after being in contempt, no plea or demurrer shall be admitted, but upon motion in open Court: and, for the reason before given, that the Court may judge whether it be really a plea to the justice of the case or not, it was very proper, that the attorney-general should file his plea in Court; and, if it be such a one as the Court should have received before the decree, and when the defendant was in contempt to the original process, it should be received now: because it goes to shew that the plaintiff is not entitled to the aid of the Court, under any circumstances, if the contract be usurious : and now, as to the terms; the defendant must pay the costs of the bill of review, as well in this Court as in the Court of Appeals: and so the plea was admitted.  