Undertaking on a Return to Defendant on Claim and Delivery of Personal Property. SEC. 37. The following is a form of undertaking on a return to defendant on claim and delivery of personal property: In the justice's court of township, in the county f .... state of ... plaintiff, against defendant. Whereas, ..... constable of .... township, in the county of under and by virtue of an order and requirement duly made and issued in the above entitled action and to him directed, did, on the day of A.D. 18.., take from the possession of the defendant in said action the following personal property to wit: [description of the property]. And whereas, the said defendant being desirous that the said property be returned to him by the said constable, has not excepted to the sureties of the said plaintiff, but has required the return of said property upon giving this undertaking. ......... as sureties, Now, therefore, we, the undersigned, .... .... and .... in consideration of the premises, and of the said return of the said property by the said constable to the said defendant, do hereby undertake, promise and acknowledge, to the effect that we are jointly and severally bound unto the said plaintiff in the sum of.... dollars (being double the value of said property, as stated in the affidavit of the said plaintiff), for the delivery thereof to the said plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may for any cause be recovered against the said defendant. In witness whereof, we have hereunto set our hands and seals, this .... day of.... State of A.D. 18.. county of.... and .... [L.S.] [L.S.] the sureties in the within undertaking, being duly sworn, each for himself, says: That he is a resident and householder within the said county, and is worth double the amount stated in the said exempt from execution. over and above all his debts and liabilities, exclusive of property undertaking Justification of Defendant's Sureties. SEC. 38. The defendant's sureties, upon reasonable no tice to the plaintiff, shall justify before the justice; and upon such justification, the officer shall deliver the property to the defendant. The officer shall be responsible for the defendant's sureties until they justify or until the justification is completed or expressly waived, and may retain the property until that time, but if they, or others in their place, fail to justify at the time appointed, he shall deliver the property to plaintiff. Pr. Act, 562; Gen. Laws, 5493. Form of Certificate of Justification of Sureties and approval of foregoing Affidavit, to be indorsed Thereon. SEC. 39. The following is a form of certificate of justification of sureties and approval of foregoing affidavit, to be indorsed thereon: day of On the .., A.D. 18.., the sureties within-named appeared personally before me, and were examined on oath on the part of the plaintiff, touching their sufficiency, in such manner as I, in my discretion, thought proper, which examination was reduced to writing, and subscribed by the sureties, and is hereto annexed; and I did then and there find the said sureties sufficient, wherefore I do allow this present undertaking. .... ...... Justice of the peace. How Officer to Take and Keep Property. SEC. 40. If the property or any part thereof be concealed in a building or inclosure, the officer shall publicly demand its delivery; and if it be not delivered, he shall cause the building or inclosure to be broken open, and take the property into his possession. When the officer shall have taken property, as in this chapter provided, he shall keep it in a secure place, and deliver it to the party entitled thereto, upon receiving his lawful fees for taking and his necessary expenses for keeping the same. Pr. Act, 563, 564; Gen. Laws, 5494, 5495. Claims by Third Persons. SEC. 41. If the property taken be claimed by any other person than the defendant or his agent, and such person make affidavit of his title thereto or right to the possession thereof, stating the grounds of such title or right, and serve the same upon the officer, the officer shall not be bound to keep the property or deliver it to the plaintiff, unless the plaintiff, on demand of him or his agent, indemnify the officer against such claim by an undertaking, executed by two sufficient sureties, accompanied by their affidavits, that they are each worth double the value of the property as specified in the affidavit of the plaintiff, over and above their debts and liabilities, exclusive of property exempt , from execution, and are freeholders or householders of the county; and no claim to such property by any other person than the defendant or his agent shall be valid against the officer unless so made. Pr. Act, 565; Gen. Laws, 5496. Officer's Return. SEC. 42. The officer shall return the order and affidavit, with his proceedings thereon, to the justice within five days after taking the property mentioned therein. Gen. Laws, 5497. CHAPTER XXXVIII. CONTEMPTS. SECTION 1. By the common law, every court has, while engaged in the performance of its lawful functions, as an incident to its judicial character, the authority to preserve order, decency and silence, without which no court could vindicate or support the laws intrusted to its administration. The power thus vested in a court is necessarily of an arbitrary nature, and should be used with great prudence and caution. A judge should bear in mind that he is engaged, not so much in vindicating his own character, as in promoting the respect due to the administration of the laws; and this consideration should induce him to receive as satisfactory any reasonable apology for an offender's conduct. 1 Cal. 153. SEC. 2. A justice may punish as for contempt, persons guilty of the following acts, and no other: 1st. Disorderly, contemptuous or insolent, behavior towards the justice while holding the court, tending to interrupt the due course of a trial or other judicial proceeding. 2d. A breach of the peace, boisterous conduct or violent disturbance, in the presence of the justice or in the immediate vicinity of the court held by him, tending to interrupt the due course of trial or other judicial proceeding. 3d. Disobedience or resistance to the execution of a lawful order or process, made or issued by him. 4th. Disobedience to a subpena duly served, or refusing to be sworn or answer as a witness. 5th. Rescuing any person or property in the custody of any officer by virtue of an order or process of the court held by him. SEC. 3. A justice may issue a warrant for abusive words in relation to his office and threats of personal injury to himself, and require the party to give security for his good behavior. 2 Hill (S. C.) 410. SEC. 4. The disobedience of an order of court is only a contempt when it is a lawful order. 7 Cal. 179. SEC. 5. It will not be contended that parties may not be punished for resistance or disobedience to erroneous orders, or that the officer executing final process, issued on an erroneous judgment, would make himself liable as a trespasser. In the examination of this question we should be careful to distinguish between the erroneous exercise of a power conferred by law, and the usurpation of power. If the district court has jurisdiction, under any circumstances, to make a certain order, the issuance of such order in an improper case would be error certainly, which an appellate court would correct, but would not be an usurpation of power or an excess of jurisdiction. 5 Cal. 495. SEC. 6. A commitment for contempt, for refusing to obey an order of court commanding the imprisonment of the party in contempt until he shall comply with the order, should set forth that it is in the power of the party to comply. 6 Cal. 320. SEC. 7. Courts are the exclusive judges of their own contempts; still, by our statute, a party cannot be imprisoned for neglecting or refusing to perform an act where it appears that it is not in his power to perform the same. 6 Cal. 318. SEC. 8. When a contempt is committed in the immediate view and presence of the justice, it may be punished summarily, for which an order shall be made reciting the facts, as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein prescribed. When the contempt is not committed in the immediate view and presence of the justice, a warrant of arrest may be issued by such justice, on which the person so guilty may be arrested and brought before the justice immediately, when an opportunity to be heard in his defense or excuse shall be given. The justice may thereupon discharge him, or may convict him of the offense. A justice may punish for contempts, by fine or imprisonment or both; such fine not to exceed in any case one hundred dollars, and such imprisonment one day. The conviction, specifying particularly the offense and the judgment thereon, shall be entered by the justice in his docket. Gen. Laws, 617, 618. SEC. 9. The judgments and orders of courts or judges, on the subject of contempts are, by our statutes, declared to be final and conclusive. 5 Cal. 495. SEC. 10. A justice who has fined a person for contempt of court, has power to imprison him until payment of the fine and costs. 19 Ill. 613. SEC. 11. The power of a justice to punish persons guilty of contempt existed at common law. 8 Johns. 44. SEC. 12. Where the contempt is committed in the presence of the court, and the offender has not left court, he may be at once called upon to answer for it. If, however, he has left the court, the warrant provided by the statute will be necessary to bring him up to answer. This may be in the following form: The people of the state of ...... to any constable of said county, greeting: We command you to apprehend .... .... and bring him before ... esq., one of the justices of the peace of the said county, at his dwellinghouse in said town, to show cause why he, the said should not be convicted of a criminal contempt, alleged to have been committed on the day of before the said justice, while engaged as a justice of the judicial proceedings. peace, in .... Witness our said justice, at the town aforesaid, the ......... |