form some act or duty, which it is yet in the power of the defendant to perform, he shall be imprisoned, only until he shall have performed such act or duty, and paid such fine as shall be imposed, and the costs and expenses of the proceeding.

§ 24. In such case, the order and process of commitment shall specify the act or duty to be performed, and the amount of the fine and expenses to be paid.

§ 25. In all other cases, where no special provision is made by law, if imprisonment be ordered, it shall be for some reasonable time, not exceeding six months, and until the expenses of the proceeding are paid; and also, if a fine be imposed, until such fine be paid; and, in the order or process of commitment, the duration of such imprisonment shall be expressed.

Section 26 provides for the power to maintain a collateral indictment, where admissible.

Section 27 provides that, if the defendant, against whom an attachment shall have been issued and returned served, do not appear on the return-day thereof, the court may either award another attachment, or may order the bond taken on the arrest to be prosecuted, or both.

The remainder of the title consists of provisions, relative to the prosecution of such bond, or to matters of practice under the former system, not material on the present occasion.

(b.) GENERAL OBSERVATION.

The service of the copy decree or order to be enforced, must, of course, be personal, upon the person required to obey the same. Code,▸ section 418. If made on the attorney, it will be a nullity for any purposes of enforcement. Fero vs. Van Evra, 9 How., 148.

When an order is to be enforced, the proof of service should also show, that the original was produced to the disobedient party at the time. Coddington vs. Webb, 4 Sandf., 639. Though, where the party is well aware of the order, and can plead no excuse of ignorance, this formality may, in extreme cases, be disregarded. The People vs. Compton, 1 Duer, 512. And an attempt to prevent due service will be, in itself, a contempt of court. Conover vs. Wood, 6 Duer, 682; 5 Abb., 84. See likewise Mayor of New York vs. Conover, 5 Abb., 244 (251).

Where an order is an order of the court at special term, production of a certified copy will be sufficient, and the original need not be exhibited. Mayor of New York vs. Conover, 5 Abb., 244; Smith vs. Smith, 23 How., 134; 14 Abb., 130. Where the order directs payment of a sum of money, the party making the demand should be furnished with, and should exhibit a written authority to receive it. See Smith vs. Smith, supra.

As to the power of the court, on special grounds, to dispense with

personal service of an order

bringing a party into contempt, see Pitt vs. Davison, 12 Abb., 385. See also, as to actual knowledge of the making and nature of an order, enjoining the payment of money, being sufficient to impose upon the adverse party the duty of obeying it, notwithstanding there may be a deficiency in its formal service upon him, Livingston vs. Swift, 23 How., 1.

In the case of a municipal corporation, service upon the mayor or principal officer, as representative of the whole body, will be sufficient, and will bind all members of that body, and render each, individually responsible for a contempt of court. Davis vs. Mayor of New York, 1 Duer, 451. This case, and that of The People vs. Compton, above referred to, are both affirmed, in The People vs. Sturtevant, 5 Seld., 263.

Even though an order be erroneous, a party is bound to obey it, whilst unreversed, and, if he disobeys, will be liable to an attachment. Arctic Fire Insurance Company vs. Hicks, 7 Abb., 204. But if a party be enjoined by final judgment, proceedings by way of attachment for disobedience of such injunction, will be stayed, by security duly given on appeal. Howe vs. Searing, 6 Bosw., 684; 11 Abb., 28.

Connivance at, or the suffering of disobedience to an order, by persons under the control of a party served with it, will be a personal contempt on his part. So also will be any passive hindrance to the order being carried out. Mayor of New York vs. Conover, 5 Abb., 244. In a case where the sheriff is guilty of neglect or misconduct, he will be subject to a strict accountability, but the party seeking to hold him, will be also held to strict practice. Van Tassel vs. Van Tassel, 31 Barb., 439; The People vs. Carnley, 3 Abb., 215. Nor will he or any other party be punished as for a criminal contempt, when the transaction is capable of any construction, consistent with innocence of an intentional disrespect to the order of the court. Weeks vs. Smith, 3 Abb., 211. He cannot avail himself of any matter of defence, personal to the defendant, in answer to an attachment for not returning an execution. Grosvenor vs. Hunt, 11 How., 355.

To be punishable by process of contempt, resistance to the order of the court must be actual and positive. A mere refusal, on claim of right, cannot be so dealt with. Mallory vs. Benjamin, 9 How., 419. Where rights are contested, in an action between claimants to the same property, the court will not undertake to settle them, on a motion for attachment. Wilson vs. Wright, 9 How., 459. Nor will one court interfere in relation to matters, as to which process of contempt is pending in another (Bennett vs. Le Roy, 5 Abb., 156); or revise the adjudication upon such process collaterally (The People vs. Orser, 12 How., 550; Pitt vs. Davison, supra); save only that, on habeas corpus, the question of jurisdiction, and whether a sufficient offence is charged in the

commitment, may be inquired into. Devlin's case, 5 Abb., 281; The People vs. Kelly, 21 How., 54; 12 Abb., 150.

Nor can errors in a decree be brought up for correction, on a motion to discharge a party from contempt, for disobeying it. They must be made the subject of a special application. Pitt vs. Davison, 12 Abb., 385. The enforcement of a decree for the delivery of the custody o children, can only be had by means of an attachment, or by habeas corpus. Process to the sheriff, commanding him to take and deliver over such children, cannot be issued. Nicholls vs. Nicholls, 3 Duer., 642. As to the powers of the court on such an attachment, and what will constitute a disobedience, see The People vs. Kearney, 21 How., 74.

A party, directed to execute a deed, is bound to do so, on tender of it, though it has not been submitted to the court or judge for approval. Such a direction is however proper, and may be applied for on motion. Hilliker vs. Hathorne, 5 Bosw., 710.

When an attachment has been issued, and the party in contempt has given bond for his appearance, it is not essential that he should be called the first day, especially if the attachment has not been filed; nor can he in that case, regularly appear by counsel on that day, and claim his discharge. An appearance on the second day, will be in time for either party. The People vs. Monroe, 15 How., 494.

The application for an attachment, when made, must be brought on upon notice, or more usually by means of an order to show cause. When made, it will be grounded, and must be noticed, on the judgment or order sought to be enforced, proof of due service, and upon affidavits showing a refusal, or omission to comply with the directions of the court, which affidavits must be served. Vide In re Smethurst, 2 Sandf., 724; 3 C. R., 55. On the hearing, the motion may be either granted at once, or a reference may be made, to inquire whether the alleged contempt has been committed, and, if so, what damages the moving party has sustained therefrom; the defendant being examined on interrogatories, in relation to the disobedience with which he is charged.

These interrogatories may be either prepared upon the spot, or beforehand, in readiness to be filed at once, in the event of the order being granted.

When the order is for contempt in non-payment of a sum of money, a precept to commit may issue, immediately on the hearing of the motion. The process to appear and answer to interrogatories is for contempts, other than those of that nature. The People vs. King, 9 How., 97. See also Taylor vs. Baldwin, 14 Abb., 166. A refusal to pay personal taxes, may, under special statute, be punishable, in the city of New York, by means of process of this description. Kahn's case, 19 How., 475; 11 Abb., 147.

Where it is clearly shown upon the opposing affidavits that the party was innocent of any intention to resist the order of the court, a reference may be refused. See Conover vs. Wood, 6 Duer, 682; 5 Abb., 84.

But, if there is any doubt upon the subject, a reference will probably be ordered. The defendant must then answer the interrogatories, and the sufficiency of his answers, by way of justification or excuse, will then be passed upon, either by the referee, or by the court, in continuance, or on renewal of the motion.

Although the filing of interrogatories be the regular course, still, if a reference be directed, and both parties appear before the referee and submit evidence, the objection will be waived. Watson vs. Fitzsimmons, 5 Duer, 629. And, where the proceeding is by order to show cause, the filing of interrogatories is not strictly necessary, though proper. The statute only prescribes that, in a case where the defendant is arrested in the first instance. Same case. See also In re Smethurst, 2 Sandf., 724; C. R., 55.

On the other hand, the matter may be brought up without a reference, upon filing the interrogatories and answers. In this case, the plaintiff may read affidavits, in opposition to the latter. Smith vs. Smith, 23 How., 134; 14 Abb., 130.

A motion to dissolve an injunction was allowed to be brought on, in opposition to one for an attachment for disobedience of it, in Field vs. Hunt, 22 How., 329; 13 Abb., 320. But, as a general rule, a party in contempt will not be heard on a matter of favor.

When a party is adjudged guilty of contempt, the mode and extent of punishment is clearly prescribed by the provisions of the statute as above cited. See, as to the extent of such punishment, Ross vs. Clussman, 2 Sandf., 676; 1 C. R. (N. S.), 91. To this may be superadded, in a proper case, the striking out of the pleading of the party guilty of disobedience, where such contempt is before trial, and has a direct tendency to defeat the rights of the adverse party. See Farnham vs. Farnham, 9 How., 231; Barker vs. Barker, 15 How., 568. See also similar cases before cited, under the heads of Discovery and Examination of Parties. The payment of a fine imposed upon the delinquent party, discharges him from any further liability in respect of costs and expenses. Davis vs. Sturtevant, 4 Duer, 148. But the payment of such a fine, by a sheriff or other officer, does not per se amount to an extinguishment of the debt. It rests with the court to judge of its effect. Carpenter vs. Stilwell, 12 Barb., 128. The general reversal at 1 Kern., 61, does not touch this point.

The form of a commitment of a witness for contempt will be found in The People vs. Sheriff of New York, 29 Barb., 622; 7 Abb., 96. See also generally, The People vs. Kelly, 21 How., 54; 12 Abb., 150; Matter of Hackley, 21 How., 103; 12 Abb., 150; Davison's case, 13 Abb., 129.

Although a corporation is incapable of being reached by means of an attachment, its contempt may be punished, by means of the imposition of a fine, and by process of sequestration. Vide 2 R. S., 463, section 36. The People vs. Albany and Vermont Railroad Company, 20 How., 358; 12 Abb., 171.

That a claim is barred by the statute of limitations, forms a defence to proceedings by way of contempt to compel its satisfaction. See Van Tassel vs. Van Tassel, 31 Barb., 439.

§ 289. Precept for Costs.

This form of process, provided for by the statute of 1847, chapter 390, above cited, in lieu of the former process of contempt for non-payment of interlocutory costs, differs in no essential respect from the ordinary execution against property, save that the process is founded upon the order, and must of course recite it, and should likewise show the lapse of the period prescribed by rule 57, and non-payment after that lapse. As to this being the only remedy, there being no longer any power to issue an attachment under such circumstances, save only in the cases excepted by section 3, of the statute of 1847, see Vreeland vs. Hughes, 2 C. R., 42; Buzard vs. Gross, 4 How., 23.

To warrant process of this description, the amount of costs must be fixed by the order, or adjusted by the clerk; it cannot issue for an unliquidated demand. Eckerson vs. Spoor, 4 How., 361; 3 C. R., 70 Boyce vs. Bates, 8 How., 495.

);

It cannot issue for costs included in a judgment, which are enforceable by the ordinary process. Wesley vs. Bennett, 6 Abb., 12. Nor for those of a demurrer. Moza vs. Sun Mutual Insurance Company, 22 How., 60; 13 Abb., 304; Palmer vs. Smedley, 13 Abb., 185. And, to be so enforceable, the costs must be awarded by an order of the court; costs given by that of a judge, as in supplementary proceedings, cannot be thus collected. Hulsover vs. Wiles, 11 How., 446.

The party entitled to the costs must wait, before issuing the precept, the whole of the period prescribed by rule 57. But, when that period has expired, no demand is necessary, and the precept issues at once, and as of course, in the event of non-payment. Lucas vs. Johnson, 6 How., 121; Mitchell vs. Westervelt, 6 How., 265; affirmed, 6 How., 311; Wetzel vs. Schultz, 13 How., 191; 3 Abb., 468; overruling on this point, Eckerson vs. Spoer, above cited. In Boyce vs. Bates, supra, an order was held necessary before issuing the process. The liability in that case was, however, of a special nature, being that of the attorney of a non-resident defendant, who had failed to file security for costs. Under those circumstances, it was held that the costs must first be tax