of recommendation given by the grantee to his son before the conveyance, but upon which a recovery was had subsequently thereto,

is such a creditor.

A judgment entered against a father in his lifetime is a lien upon lands fraudulently conveyed by the father to his son, either before or after the entry of the judgment, although the judgment was not revived within five years after its entry, nor within five years after the death of the father.

BOLTON, CHRISTMAN & Co.'s APPEAL.

Lien of material men —

- Entire contract · - Book charges.

To render valid a lien for materials furnished for the erection of a building, the claim must be filed within six months from the delivery of the materials; but where the delivery is in pursuance of an entire contract, the limitation does not begin to run until the contract is performed.

A book of original entries kept by a paper-hanger, is evidence of the amount of paper furnished and labor bestowed in putting it upon the walls, if the entry is made as soon as the quantity of paper and the amount of work done in using are ascertained by the completion of the work, although this extended over several days.

A confession of judgment by A., a debtor in failing circumstances, in favor of B. in trust for certain laborers, to whom A. owed several small sums, is not an assignment for the benefit of creditors, under the statute regulating such instruments.

BARKER v. MCFERRAN.

Will-Probate — Presumption.

By the law of Pennsylvania, probate of a will of real estate before the register, is prima facie evidence of the devise. This presumption is not rebutted by showing that the will purported to be signed and sealed by the testator, but also had his mark affixed to it, that two of the witnesses were dead, and the third only capable of authenticating his own signature. The presumption remains that the will was duly signed, and the mark will be rejected as surplusage.

MARTIN V. BAILY.

Will-After-acquired property — Power to sell.

A statute declares that "real estate acquired by a testator after

making his will shall pass by a general devise unless a contrary intent be manifest from the face of the will":

Held, affirming Roney v. Stiltz, 5 Whart. 385, that a power to sell operates on after-acquired property.

Superior Court of Suffolk County, Massachusetts. May Term, 1856.

LEMUEL GILBERT, Petitioner, v. ERASTUS W. SANBORN.

It seems that this court can punish summarily, for a contempt, an officer who uses the process of the court illegally and oppressively, with intent to vex and injure the party complaining, as by retaining possession of the warehouse of a debtor for an unreasonable time, after making an attachment of his goods, and being notified to remove them.

But such oppression is not shown to exist by merely proving that possession was retained for six days; the articles being numerous and difficult of removal; and those of the complainant, the debtor, having been mixed, by his consent, with other like articles belonging to another person, the debtor not having pointed out to the officer which of the goods were subject to the attachment.

on the

THIS case was argued before all the judges of the court day of June, 1856, by E. F. Hodges, Esq., for the petitioner, and H. L. Hazleton, Esq., for the respondent. The facts appear sufficiently in the opinion, which was delivered by

ABBOTT, J.—This was an application to punish the defendant for a contempt of court. From the petition, respondent's answer, affidavits and agreement of parties, the facts upon which the court are asked to interpose and deal with the respondent as guilty of a contempt of their authority, are substantially these: On the 5th of May, 1856, the Bass River Bank sued out a writ of attachment from this court against Gilbert, the petitioner, and put it into the hands of the respondent, Sanborn, a deputy-sheriff, for service, who, on the next day, attached a large number of piano-fortes, finished and unfinished, in Gilbert's warehouse, and left a keeper there to maintain his possession. On the 7th of May the petitioner Gilbert notified Sanborn, both in writing and verbally, to quit his premises, and remove any goods he had attached. On the same day, one Keith also notified Sanborn that he held three mortgages upon portions of the attached property,

given him by Gilbert, by which all the property in the warehouse on the 20th of December, 1855, was conveyed to him, and that all the rest of the attached property he claimed as his own, in which Gilbert never had any interest. Neither Keith nor Gilbert gave the defendant any means of ascertaining what parts of the property were included in the mortgages, and what parts belonged to Keith absolutely. The petitioner's application for an attachment against the respondent for a contempt was filed on the 12th of May. Sanborn in his answer swears that the mortgaged property and that belonging absolutely to Keith, were so intermingled, and this was not denied, that it required time to make the separation; and that he had not kept the property on the petitioner's premises an unreasonable time. He also purges himself by his oath from any intentional contempt of the authority of the court.

Upon these facts two questions arise; first, Does this court possess the power to punish, as a contempt, the wilful abuse of its process by an officer of the law, to whom it is committed for service? and secondly, If the court is clothed with such power, whether a case is made out here for its exercise?

The first and more general question is certainly one of much practical importance, and we are not aware that there has been any express decision bearing directly upon it, in this commonwealth: certainly, the power claimed to exist here has not been exercised in any case known to us, for the oppressive and illegal acts of an officer in attaching property upon mesne process. The fact that it has not been exercised is not conclusive to show that it does not exist; but should certainly induce a more careful examination of the reasons and grounds upon which it is claimed to be based. Upon a careful examination of the principles and authorities governing and applicable to courts of justice and contempts of their authority, we are satisfied, in the first place, that a wrong and oppressive act, wilfully done by an officer, in serving the process of this court, under color of his office and the process committed to him, is a contempt; and secondly, for such an act, the court have power to bring the officer before them in a summary manner, and punish him by fine or even by imprisonment. The most elementary principles applicable to courts of justice clothe them with power to punish for contempt, as incident to and necessary for their very existence; the only real question that can arise in any particular case, is

not upon the existence of the genuine power, but whether the facts established call for its exercise.

It is by no means necessary that the act claimed to constitute a contempt should be done in the presence of the court, or even while it is in session. It will immediately suggest itself to all, that there are many acts, settled to be contempts, by well known and recognized rules of law, which are not done in presence of the court or while it is in session. Indeed, the rule seems to be this. Anything wilfully and designedly done, for the purpose of insulting and degrading the court, in the exercise of its legal powers, or to hinder, impede, or prevent its proper legitimate action in the discharge of its duties, is a contempt which may be punished summarily without resorting to the ordinary and usual modes provided for the trial and punishment of erimes. Without this power it might be impossible for courts to proceed in the discharge of their duties; the mere fact of its being known to exist, would, without doubt, generally obviate any necessity for its exercise; but when the occasion calls it into action, it is due to the proper administration of justice, that it should be exercised promptly and without hesitation or delay. Indeed the right, or rather the duty of courts to punish summarily for contempt is analogous to and quite as necessary for the protection of their official life and independent action, as the right of self-defence is to the individual. In both cases, it is not only a right, but a duty which the highest and most universal considerations of a social and public character impose upon courts and men; and a prompt and fearless discharge of it, when the occasion arises, will undoubtedly render those occasions quite unfrequent.

That a wilful abuse of the process of the court by an officer intrusted with its execution, is a contempt, cannot and ought not to be questioned. It behoves the court to see to it, that their process, to which, if legal, all are bound to submit, should never be wilfully abused by an officer, whose duty it is to act in exact subordination to the law; and if such process is ever used as a color for the doing of acts illegal and unjustifiable, it is the highest contempt of the authority and character of the court, for it is vouching in their power for the purpose of doing a wilful wrong. What can possibly more tend to insult the court, or be more hazardous to the proper administration of justice, than that an officer should call to his aid the authority and process of the court, in doing a wrong and oppressive act?

It is an attempt to make the court aiders and abettors in the wrong, and unless they have power to punish, and promptly exercise it, the result would be that the administration of justice would itself justly fall into contempt. It is to be feared, that at times officers permit themselves to be used in the discharge of their duties by dishonest and grasping parties, to gain some advantage by abuse and oppression which could not otherwise be obtained; in such cases it should be distinctly understood, not only that the power exists in the court to punish summarily, but that it will always be promptly exercised. Both principle and authority unite to sustain the existence of this power. 1 Gabb. Crim. Law, 285; Hawkins, P. C., B. 2, ch. 22, § 12; Bac. Abr. Attachment, A.; 7 Dane's Abr. ch. 220, § 28; Yates' Case, 4 John. R. 317; Yates v. Lansing, 9 John. R. 395.

It may be urged, that extending this power of punishing for contempt to wrongful acts in the execution of process, will be inconvenient, and render it necessary for the court to pass upon many questions of fact really in dispute. If this was so, it would be no reason why the power should not be exercised, if legally resting with the court. But there is no such danger. The court will not resort to punishment except in a case of clear, wilful wrong, and where there can be no real dispute in reference to the facts; they will not attempt to find contempt where none is intended, or undertake to decide in cases where the facts are really in dispute between the officer and the complaining party, the officer claiming on his side the existence of circumstances which would render his acts legal. Generally, we think, it would be sufficient, if upon a complaint against an officer for contempt founded on the wrongful execution of process from the court, if he should, in his answer, purge himself from intentional wrong, and claim that he was in good faith acting upon a state of facts which he had reason to believe existed, and which, if he could establish, would render his conduct justifiable; at any rate, such an answer would make a case, where the burden would be on the other side to show clearly that the claim of right was only fraudulent and colorable. In order to make out contempt against an officer, merely showing a tort or trespass will not be sufficient; for such acts, unaccompanied with anything else, the court will leave the parties to settle their rights by a resort to the ordinary remedies. In order to call into action the power to punish for contempt, the tort must be accompanied with proof that the officer has know