Lewis

then sojourning in Philadelphia. He did not G. Dore Cogswell, of Camden (Leo Belmont appear at the hearing on the return day, but and George H. Bates, both of Philadelphia, sent his counsel, who moved that a day might be fixed for taking the deposition of the respond-Pa., on the brief), for appellant. ent, who counsel represented desired to have a Starr, of Camden, for respondent. hearing in open court. He presented no answering affidavits. His counsel was inquired of as to whether Staley was in court in response to the order to show cause, to which counsel replied that he was not. His counsel stated that he was in Philadelphia, where he lived. I then examined the petition, and finding that the respondent Staley had been adjudged guilty of contempt on a former action, and had been fined $50, inquired of his counsel if the fine and costs had been paid, to which his counsel replied that Staley had not paid the fine because he could not raise the money, but that he thought that Staley should be entitled to a hearing without having complied with the previous order of the court. Counsel for the complainant then moved that the order be made absolute,

and this was done."

GARRISON, J. (after stating the facts as above). [1] Contempts are of two sorts, "civil" and "criminal." The distinction has been frequently pointed out. Dodd v. Una, 40 N. J. Eq. 672, 5 Atl. 155; Thompson v. P. R. R. Co., 48 N. J. Eq. 105, 21 Atl. 182; Frank v. Herold, 64 N. J. Eq. 371, 51 Atl. 774; Gompers v. Buck's Stove & Range Co., 221 U. S. 418, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874; Gompers v. United States, 223 U. S. 604, 34 Sup. Ct. 693, 58 L. Ed. (May 11, 1914). In a "civil contempt" the proceeding is remedial, it is a step in the cause the object of which is to coerce one

Thereupon the following order was made party for the benefit of the other party to do and filed:

or to refrain from doing some act specified "It appearing to the Chancellor that upon in the order of the court. Hence, if imprisonpetition filed by the complainant in the above-ment be ordered, it is remedial in purpose entitled cause an order was entered, dated 22d and coercive in character, and to that end day of September, 1910, requiring the defendant, Samuel S. Staley, to show cause before the must relate to something to be done by the Chancellor, at the Chancery Chambers, in the defendant by the doing of which he may discity of Jersey City, on Monday, the 3d day of charge himself. As quaintly expressed, the October, 1910, at 10 o'clock in the forenoon, imprisoned man "carries the keys to his why he should not be adjudged guilty of contempt of court, in violation of the terms of the prison in his own pocket." Re Nevitt, 54 C. permanent injunction granted against him in C. A. 622, 117 Fed. 451. "Criminal conthe above-entitled cause, and be punished ac- tempts," on the other hand, as the term imcordingly; and it further appearing by affidavits that copies of said petition and order were plies, are offenses against organized society duly served personally upon the said Staley, which, although they may arise in the course as required by the terms of said order; and the of private litigation, are not a part thereof, court, after considering the said petition and the but, like other criminal offenses, raise an affidavits attached thereto, being of opinion that issue between the public and the accused. the said defendant, Staley, did commit the contempt with which he is charged and violated the Hence if imprisonment be adjudged, it is, by terms of the injunction aforesaid, and that his analogy with the criminal law, punitive in conduct was calculated to impair, defeat, and prejudice the rights of the complainant in this purpose and definite in character. So markcause and was an affront to the dignity and ed is the difference between the two sorts of power of this court: It is thereupon on this imprisonment that it serves as a practical 4th day of October, 1910, on motion of Lewis test by which the two sorts of contempt may Starr, solicitor of the complainant, ordered that the said Samuel S. Staley be and he is be distinguished. hereby adjudged to be guilty of contempt by As was said by Mr. Justice Lamar in Gomreason of the misconduct alleged in said peti-pers v. Buck's Stove & Range Co.: tion, and that he pay to the clerk of this court a fine of $50 for the use of the state, and that he pay to the complainant the costs of these proceedings to be taxed. And it is also ordered that, as further punishment for his said conduct, the said Samuel S. Staley be committed to the common jail of the county of Camden, at Camden, in this state, and there confined for a period of three months from the date of his commitment, to run concurrently with a similar term of imprisonment imposed in another cause pending in this court between the parties hereto by order, dated this day, and for a further term until he shall have paid said fine and costs, as aforesaid, unless the Chancellor shall see fit sooner to discharge him. And it is further ordered that a warrant issue accordingly, directed to any sheriff, constable, or other peace officer of the state of New Jersey."

From this order Samuel S. Staley has appealed, specifying as one ground of appeal that he was entitled to have proof made of his alleged contempt by competent testimony with opportunity to cross-examine the wit

"The distinction between refusing to do an act commanded (remedied by imprisonment until the party performs the required act), and the doing of an act forbidden (punished by imprisonment for a definite term), is sound in principle, and generally, if not universally, affords a test by which to determine the character of the punishment."

Judged by this test, the order brought up by this appeal was for a criminal contempt; it was for the doing of an act forbidden, and the punishment was imprisonment for a definite term. In principle the present case is distinguishable from Frank v. Herold, in which, as in this case, the defendants were adjudged guilty of a contempt of the Court of Chancery for willfully violating a restraining order of that court and were sentenced to imprisonment for a definite term. The appeal was dismissed by this court upon the express ground that the proceeding was a criminal contempt in which,

The Legislature has since given a right of appeal under which the present case is now before us. This statute was passed in 1909 (P. L. 270), and because of the previous absence of an appeal in criminal contempts the questions that now arise are for the most part res nova in this court.

[2] The Herold Case establishes beyond question the criminal character of the present contempt; and the other cases cited are also precedents for the authority of the court in which the contumacious conduct is alleged to have occurred to institute and carry through such criminal proceeding to its termination. In Dodd v. Una, Mr. Justice Depue described this proceeding as:

"Of a criminal nature, instituted by the court of its own motion-heard by it in a summary manner-and punishable by imprisonment until the contempt be purged, or by a fine payable to the state."

least it seems that they may be, and preferably are, tried in that way."

The quotation is from the opinion delivered by Mr. Justice Holmes in Gompers et al. v. United States, filed May 11, 1914. The relegation of criminal contempts to the courts of ordinary criminal jurisdiction insures a tribunal in which the functions of prosecutor, judge, and jury are exercised by different officers against none of whom was the contumacious conduct directed; if, however, the affront is to be punished by the tribunal at which it was aimed, and which by its constitution is both judge and jury and accuser as well, it is all the more important that there should be a scrupulous observance of the substantial rights of the defendant, one of which unquestionably is that of being represented by counsel when the incriminating testimony is given with right to cross-examine the witnesses, who are in effect state's witnesses, and to lay, if possible, the foundation for their contradiction or impeachment.

It is not essential that the proceeding should be instituted by the court of its own motion; the matter may be, and in actual [3] In the case now before us no witnesspractice generally is, brought to the atten- es were examined, although the accused was tion of the court by complainant's counsel represented by counsel who was present in who, in such case, acts as amicus curiæ. court upon the return of the rule to show However set on foot, the person at whom the cause. Counsel, it is true, moved for a concriminal proceeding is directed is entitled tinuance, which was denied; but such motion throughout to such of the substantial rights had reference solely to the taking of the depof a person accused of crime as are consist- osition of the defendant and in no way sugent with the summary nature of the proceed-gested that the case against the defendant ing and the processes of the forum in which should be made out otherwise than by lawful it is administered. One of these rights of testimony. This motion for a continuance the accused is that the facts by which his the court denied apparently because of an unguilt is determined and his punishment metpurged contempt in another cause. The deed out shall be established by the oaths of nial of this motion was a matter of discrewitnesses subject to cross-examination and tion that we do not review. When, howimpeachment under the ordinary rules of eviever, this motion was disposed of, there redence unless the accused has either express-mained nothing for the court to do but to ly or by implication waived the right thus hear the rule to show cause which on its face intended for his protection, as to which lat- disclosed that its object was to have the ter point nothing is now decided. Magennis court adjudge whether or not the defendant v. Parkhurst, 4 N. J. Eq. 433; Buckley v. was guilty of a contemptuous violation of its Perrine, 55 N. J. Eq. 518, 36 Atl. 1037, 1088; permanent injunction, i. e., a proceeding at Holt's Case, 55 N. J. Law, 384, 27 Atl. 909. law for a criminal contempt and not a moExtended citation is unnecessary in view of tion in the equity cause or a step in that the fact that the right of which we are private litigation. This is the precise point speaking is upon fundamental principles ap-on which the case of Gompers v. Buck's plicable to all trials for criminal offenses, and in criminal offenses the sort of evidence by which the guilt of the accused may be established depends, not upon the character of the tribunal by which he is tried, but upon

Stove & Range Co. turned, in which the ground of reversal was that, while the judgment was appropriate only to a proceeding at law for a criminal contempt, the proceeding throughout was framed and treated as part of the civil cause in equity.

the nature of the offense for which he is tried, so that evidence that would be inadmissible upon an indictment for contempt, tried that case, "between the two classes of proceed"There are some differences," said the court in by the courts of ordinary criminal jurisdic-ings which involve substantial rights and constition, is equally so when tried in a summary way by the Court of Chancery.

"These contempts are infractions of the law visited with punishment as such. If such acts are not criminal we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech. So truly are they crimes that it seems to be proved that in the early law they were punished only by the usual criminal procedure (3 Transactions of the Royal Historical Socie

tutional privileges. Without deciding what may be the rule in civil contempts, it is certain that in proceedings for criminal contempt the defendant is presumed to be innocent, he must be proved to be guilty beyond a reasonable doubt and cannot be compelled to testify against himself"-citing a large number of cases.

[4] It is hardly necessary to add that among these substantial rights is that the defendant's guilt must be proved by judicial

had no power to make the order appealed from, and section 102 of the Chancery Act and the case of Seastream v. New Jersey Exhibition Co., 69 N. J. Eq. 15, 59 Atl. 914, are cited to us.

dinary rules of evidence are applied, which say that the Vice Chancellor, in any event, is not the case with ex parte affidavits such as those upon which the defendant in the case before us was convicted. These ex parte affidavits, if served upon the defendant, as to which the case is silent, were not legal evidence in a proceeding at law such as this. Baldwin v. Flagg, 43 N. J. Law, 496.

The chancery rules referred to by Mr. Justice Depue do not and could not make such affidavits evidence in this criminal proceeding; they were lacking in the essential elements of legal evidence. As was said by Chief Justice Beasley in West Jersey Traction Co. v. Camden, 58 N. J. Law, 362, 33 Atl. 966, speaking of the ex parte affidavit on which the writ of certiorari is allowed:

"Such oath has no semblance of juridical testimony. The rules of evidence are not applied to it, and it is used against a party who has no knowledge of its existence. Such a basis as this is incapable of supporting anything in the nature of a judicial decision.'

The conclusion we have reached renders it unnecessary to consider this question, but we point out that section 102 applies to the Vice Chancellors sitting as judicial officers and not to orders made by the Chancellor with or without their advice. It may also be well to point out that what was said by Chancellor Magie in the Seastream Case was not approved by this court when that case came before it upon appeal (Seastream v. N. J. Exhibition Co., 72 N. J. Eq. 377, 380, 65 Atl. 982), and also that the absence of an appeal, which was an influential factor in the case in chancery, has since been altered by the enactment of the statute under which the present appeal is now before us. It is furThe defendant is not to be held responsible ther argued that, if a Vice Chancellor may try for the manner in which the case against a criminal contempt, he can do so only when him was conducted; his counsel waived the matter is expressly referred to him, and nothing and acquiesced in nothing excepting as to the adverse ruling of the court on his motion for a continuance. If the incriminating witnesses had been sworn and examined as they should have been, he was there to cross-examine them or to lay the ground for their contradiction or impeachment. The ex parte affidavits, if known to the defendant, were not recognized by him as legal evidence; answering affidavits were not filed, hence the defendant did not even apparently acquiesce in that method of trial. We can reach therefore but one conclusion, and that (Court of Chancery of New Jersey. June 8,

is that the order sentencing the defendant to a definite term of imprisonment for a criminal contempt was made without any evidence of his guilt that was legally admissible in such a proceeding.

That an order so made will be set aside upon appeal goes without saying, It may well be that such order is also open to the same objection that led the Supreme Court of the United States to set aside a similar order in Gompers v. Buck's Stove & Range Co., the syllabus of which case is:

that such a reference is not covered by the general chancery rules. The question is not free from difficulty, and is not now passed upon for the reason that such a decision is entirely unnecessary to the rights of any party now before us.

For the reason already stated, the order brought up by this appeal is reversed.

(83 N. J. Eq. 549) COOK et ux. v. COOK et al.

1914.)

1. LANDLORD AND TENANT (§ 139*)-TENANT OF FARM LAND-RIGHT TO CROPS.

or uncertain, may after the expiration of his A tenant of farm land for a term, certain term enter on the premises and cut and carry away all the grain sown but not ripe when his term expired.

Tenant, Cent. Dig. §§ 488, 492-506; Dec. Dig. [Ed. Note.-For other cases, see Landlord and § 139.*]

2. PARTITION (§ 109*) SALE RIGHTS OF PURCHASER TO GROWING CROPS.

A sale under decree of partition of farm "A punitive sentence appropriate only to a land in possession of a tenant in common under proceeding at law for criminal contempt where should have possession until a sale, but pay an agreement with his cotenants, whereby he the contempt consisted in doing that which had the interest on a mortgage and taxes and inbeen prohibited by an injunction could not properly be imposed in contempt proceedingssurance premiums, passes to the purchaser the which were instituted, entitled, tried, and up to the moment of sentence, treated as a part of the original cause in equity."

If there is any essential difference between the case cited and the one before us, it is not apparent upon a somewhat careful examination; or perhaps it would be more frank to say that, while it is apparent that there is no difference, we prefer to place our decision upon the meritorious ground already stated rather than upon the narrow one of an error in procedure.

growing crops unless specially reserved, but the tenant has an equity in the proceeds for the value of the crops.

[Ed. Note. For other cases, see Partition, Cent. Dig. §§ 375-397; Dec. Dig. § 109.*] 3. PARTITION (§ 81*) — SALES RIGHTS TO GROWING CROPS.

of a tenant in common with the consent of the Where, in partition of a farm in possession cotenants, an order directing the reference master to report the value of the tenants' interest, by reason of his ownership of the growing crops, was entered by the solicitor of the complainant with the consent of the tenant's attorneys, the parties understood that the crops We are asked by the appellant's counsel to should not be reserved from the sale, so that