People ex rel. Johnson v. Nevins — 1 Hill & Den.154

Majority

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The People, ex rel. Johnson, vs. Nevins.

Headnote

In a proceeding to compel an attorney of this court to pay over mdneys collected for his client, a rule was entered which recited the filing of interrogatories, to. gether with the fact of the defendant having answered; and then, after referring it to the clerk forthwith to ascertain and report the costs, &c., and the amount directed by a previous order in the same matter to be paid by the defendant, went on to fine him in the amount so to be reported, and ordered that he be committed to the custody of the sheriff, until that sum, as well as the costs and expenses of the commitment, were paid: Held, that the report having been filed the next day, a certified copy thereof, and of the said rule, were sufficient to authorize the sheriff to arrest and imprison the defendant; and a discharge from the imprisonment, granted by a supreme court commissioner, was reversed.

The sum for the non-payment of which a commitment is ordered, need not be named in the order, but may be ascertained through a reference thereby directed to the proper officer; and the officer’s report, when perfected, though made after the order, is to be regarded as a part of it.

A sheriff’s return of commitment, to a writ of habeas corpus, should be construed liberally.

The jurisdiction of courts of record as to the person, in cases of commitment for contempt, is to be intended. »

A rule of a court of record that a defendant be committed for contempt, need not recite the prior proceedings; if it is such a rule as the court might legally make under any supposable state of circumstances, all jurisdictional steps and matters of regularity are to be presumed.

For defects in respect to matters of regularity, the only remedy is by motion.

Semble, that even on certiorari to remove a summary conviction by an inferior court, the superior court will intend the proper notice to acquire jurisdiction.

Where the proceedings of a superior court are drawn in question collaterally, before an inferior, the latter has no power to examine the regularity of the jurisdictional steps. '

Jurisdiction of the person once acquired, by arrest under an attachment for contempt, continues while the case is under examination, whether the defendant remain in actual custody, or not.

Under a non-bailable attachment, it is the duty of the sheriff to hold the defendant in custody till he is discharged in due form, bringing him before the court on the return of the writ.

Attorneys, &c. are, by legal fiction, deemed present in court during term time; and, quere, whether process is then necessary to warrant proceedings against them.

This court wifi take judicial notice that a person is one of its attorneys; and, semble, a supreme court commissioner, proceeding as such, should do the same.

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At common law, a rule for commitment, made by a court of record, need not show the cause of commitment; but the revised statutes require that it should.

It is enough, however, that the cause be substantially stated, though without technical precision; and the rule in this case, mentioning a previous order to pay money which the defendant had not complied with,- sufficiently showed that the cause of commitment was for a contempt.

Semble, a supreme court commissioner has not jurisdiction to discharge a defendant from custody because the proceedings for his commitment are informal merely.

Quere, whether he can do so, in case of commitment for an alleged contempt'by a superior court, for the reason that, in his judgment, the offence charged was not a contempt.

The revised statutes have not taken away from courts of record their common law power of committing for contempts by rule merely, without other process.

Though conceded, that, at .common law, an inferior court cannot commit without a regular warrant.

The statute provision as to a precept against one disobeying an order to pay costs, was designed to furnish a mode of proceeding less circuitous than that of the common law; and either mode may be adopted at the election of the party.

The term process, as used in 2 It. S. 444, § 25, includes a rule or order of commitment.

The legal signification of this term generally, discussed and illustrated.

Semble, had there been in this case no actual entry of the proceedings prior to the defendant’s arrest, the imprisonment would have been lawful, and the entry might have been made afterwards. *

On certiorari to a commissioner of the county of Brie.

On the 10th of January, 1839, this court granted the following rale or rules; a memorandum of which was entered in the clerk’s minutes, as follows:

The People, ex relat. Ebenezer Johnson,

Thomas J Nevins.

On filing interrogatories and the defendant’s answer thereto, and on motion of Mr. Taber, of counsel for the relator, and after hearing counsel opposed, it is ordered, that it be referred to the clerk of this court at Albany, forthwith to tax and assess the amount of the costs and expenses of the proceedings of the relator in this matter, and of the amount directed to be paid by the defendant under the order of

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this court, a copy of which is annexed to the interrogatories in this cause. And, on filing the report of said taxation and assessment, this court ordered and adjudged, that a fine be, and hereby is imposed upon the said Thomas J. Nevins, to the amount of the sum reported by the said clerk as aforesaid, to indemnify the said relator, to whom the same is hereby ordered to be paid; and that the said Thomas J. Nevins be committed to the custody of the sheriff of the county of Erie, until the sum above mentioned, and the costs and expenses of the said commitment; be paid.”

On the next day, the clerk reported thus :

K The People, ex rel. Ebenezer Johnson, v.

Thomas J. Nevins.

X, John Keyes Paige» clerk of the supreme court at Albany, to whom if was referred, • by rule of this court of the 10th instant, to assess the amount directed to be paid by the defendant to relator, by rule of this court granted on the 4th day of October last, and to file his report, &c., do report—it appears that on the 30th day of October, 1839, the said Thomas J, Nevins, as attorney for John I. Fay against James Hollister, received for damages in said suit file sum of $700,53; the said claim had been duly assigned to relator ; that it further appears, that the costs of proceedings in this matter up to the time of issuing the attachment, and allowed by this court, amount to $37,72; and that I have this day taxed the costs of relator, which have accrued upon the execution and return of attachment, at the sum of $109,08. I further report, that I do allow the said sum received for damages,................................ $700,53 Interest on same from 4th day of October, 1838, to this day, being 3 months 7 days, being the time the order

to pay was granted,......................... 13,29

The costs on previous motions,.................. 37,72

Costs on return of attachment taxed by me,".........109,08

Total,

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I do therefore report the whole amount this day, at the sum of eight hundred and sixty dollars and sixty cents.

Jno. Keyes Paige, Clk,”

On this report being filed, January 11th, 1839, and the above rules and report being certified by the clerk, with this caption— u In Supreme Court, 10th January, 1839”—under his hand, and delivered to the sheriff of Erie, he, the sheriff, arrested Nev-ins, January 11th, in a public street in Albany, and committed him to the jail of Erie county. Thence he was brought before a commissioner of that, county on habeas corpus; to which the sheriff returned the above mentioned certified copies as his authority.

The commissioner made an order discharging Nevins from custody; to reverse which order, the relator sued out a certiorari, to which the commissioner returned the above proceedings before him.

A. Taber, for the relator.

M. T. Reynolds, contra.

The counsel for the defendant justifies his discharge, not because this court had not jurisdiction in fact, but because it did not appear on the papers in the hands of the sheriff that it had been duly exercised; in short, because the authority or warrant to arrest and commit was formally defective. The objections are, first, that the defendant, being out of court, could not be arrested without writ; or, if he could be arrested by rule, this was defective in not reciting and showing jurisdiction: and second, that the rule was irregular on its face, in not being for a sum certain, nor showing a demand of the money previous to the conviction. The objections as to jurisdiction of the person, and regularity, are all answerable by general arguments showing that both must be intended; though' I think that both suffi

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ciently appear on the return. Whether we have the power to commit by rule, depends on the inquiry, whether we had it at the common law, and whether it is left to us by the revised statutes.

The rule in this case was, in substance, that the defendantNevins be committed to the custody of the sheriff of Erie, till he paid a fine of $860,60, imposed upon him by that rhle. The sum for the non-payment of which a man is committed for contempt, should no doubt he specified by the rule, but that may be cither directly, or by reference to a proceeding taken to ascertain the amount through the proper officer, whose report, on its being filed and confirmed, or' not objected to, becomes the act of the court, and is then to be read as part of me rule. Id "certum est quod certum reddi potest. Here was a return by the sheriff of the commitment and cause, which was plain enough ; and even more full and certain than appears on common process, such as a capias. The least liberality of intendment by the commissioner, would have made the case equivalent to a full recital of all the proceedings. In Rex v. Bethel, (5 Mod. 19, 23,) the court of king’s bench were asked, on habeas corpus, to construe a return of the sheriff very strictly; but they would not. They read it liberally, and intended much, to make the commitment, which appeared to be on a short order, good. Eyre, J. said: “ It might rid all the jails in the kingdom, if the jailor’s return should be taken so strictly.” We shall see hereafter that the proceedings of all courts of record, in cases of commitment for contempt, stand on the same footing, in this respect, as commitments of the English house of commons. Of these, a learned judge has lately said, if it appear that the. case adjudicated upon, map be one of privilege or contempt, it must be presumed that it was so. (Coleridge, J. in Stockdale v. Hansard, 9 Adolph. & Ellis, 1; 36 Engl. Com. Law R. 122, S. C.)

That this court had jurisdiction of the person must he intended. Among the requisites for acquiring that jurisdiction, in a proceeding for contempt, is the presence of

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the defendant in court, either voluntarily, or by compulsion under process of attachment. On his thus appearing, this court has the power to fine, and to imprison till the fine be paid- That is ordinarily done on the defendant’s answer to interrogatories and other proofs touching the matter in question. But it is not necessary to the validity of the rule, that all these things should be recited on its face. Such a thing is never thought of. The rule is commonly very brief; and if it be such as this court is authorized to make under any given concourse of circumstances, all jurisdictional steps and matters of regularity are to be presumed. If there be any defect in the latter respect, the only course is to raise the ’ question by motion. When the proceeding of a court of general jurisdiction is drawn in question collaterally, before an inferior officer, he has no power to examine whether the steps which were necessary to warrant it have been regular. A contrary doctrine would turn a habeas corpus into a writ of error to revise the proceedings of the various courts of record. We have of late, in several instances, refused to interfere on such grounds with the proceedings of courts of common pleas, even on writ of error. Hart v. Seixas, (21 Wendell, 40, 45,) is one instance, (and vide id. 57, note.) In the course of our researches we found that even in respect to inferior jurisdictions, the same principles prevailed to a very considerable extent. On certiorari to remove a summary conviction before a magistrate, though a criminal case, the superior court will intend that he had acquired jurisdiction by the proper notice, or other form adapted to the nature of the case. (Id. 47, and cases there cited.) A fortiori, where the court, whose proceeding is in question, has general jurisdiction, not only of the person and subject matter, but territoiially throughout the state. In the King v. Bethel, (5 Mod. 19,) before cited, the prisoner Was committed on an order that he should remain in custody— not that he should be committed—and all the judges agreed that, though the order was erroneous, in not directly saying, “let him be committedyet, it should be intended

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that he was already in custody, and then the words “ let him remain,” were equivalent to a commitment. Even Holt, the strictest judge in the world on such jurisdictional matters, concurred clearly in this; and the court declined interfering on habeas corpus.

> Take, for instance, the little slip called a bail-piece, on which a man may be arrested, and, under a short committiiur endorsed by a judge, incarcerated either before or after judgment, at the pleasure of his mahucaptors. Would a commissioner have power, on a sheriff returning these upon a habeas corpus, to look behind them, and inquire whether the court in which the bail-piece was taken had acquired jurisdiction, or proceeded regularly ? This will not be pretended. If there should be any thing so irregular that the arrest and commitment were unwarranted, the course of every intelligent lawyer would be an application to the court. Who ever thought it necessary that jurisdictional steps should appear on such a piece of paper? And yet, it is the most authoritative warrant for an'arrest and commitment, of any instrument known to the law.

I need scarcely say that a "rule of court convicting, fining and ordering an imprisonment fot a contempt, is a proceeding of much more "frequent occurrence; and even less open to question. This was admitted on the argument, provided the prisoner bo in court. (Wyatt, 140. Ex parte Whitchurch, 1 Atk. 57.) I presume it will hardly be -contended that this commissioner had the power to inquire whether Nevins was physically in court when he was convicted. He might have been so; and if that were necessary it was the duty of the commissioner to intend that he was there. But that was not necessary. The process to bring the party before the court is attachment. (4 Bl. Comm. 287.) Ah arrest under this process confers jurisdiction, which continues while his case is in -a course of examination, he being either actually in court, or ordered to stand committed, or let out on bail. (4 Bl. Comm. 287.) The bare endorsement of an appearance on some kinds of mesne process, brings and continues a defendant in court; and so the return of a sheriff of cepi corpus, fol

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lowed by special bail. Under a non-bailable attachment, it is the business of the sheriff to hold the defendant in custody till he is discharged in due and ordinary course of law, bringing him before the court on the return of the writ. The defendant is sometimes, in such case, an attorney, who, as in the instant before us, is proceeded against for neglect to pay over moneys collected for his client. His name is on the roll, and so long as it is there, he is legally and custonaarily denominated a gentleman; and because a confiding sheriff happens to treat him as such, by allowing him to go into the street, does it follow that this shall oust the court of its jurisdiction?' If that be so, there is a good deal of difficulty to see how any court can sustain its jurisdiction through the course of a protracted examination. Should it adjourn to another day, the prisoner must, in the meantime, be personally removed from its presence, and peradventure be part of the time in the street. This would be fatal to jurisdiction, should he refuse, voluntarily,' to return ! The difficulty could hardly be obviated by ordering the prisoner into close custody with the sheriff, or into the jail of the immediate county. And surely, on the principle in question, our right to imprison on a bail piece would be absolutely subverted. Yet it has been supposed to continue, even though the defendant depart from the state.

Again: attorneys, counsel and other officers of the court, are, in fiction and judgment of law, always deemed, not only like a man out on bail, to be within the jurisdiction of the court, but, during term, present in court; and they are so expressly treated in pleading. (1 Tidd’s Pr. 77, Am. ed. of 1807. 2 Chit. Plead. 29, Am. ed. 1828.) They are always, in term time, as much within the jurisdiction of the courts in' which they are licensed, as a prisoner in custody of the sheriff or marshal. (Vid. 6 John. R. 478.) No process therefore against either is, perhaps, in strictness necessary to bring them into court. That a man is an attorney, is a fact of which judicial notice may and should be taken, not* only by the court, but by

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sheriffs and commissioners when he is brought before them on habeas corpus. That a rule peremptory may be made against him to pay such sum as shall be taxed by the clerk, even before' attachment, is shown by an instance in Hand’s rules. The rule was, “That the said Mr. A. B. (the attorney) do forthwith pay, <fec. the costs, &c. [in the cause] to be ’taxed by Mr. Benton; and it is referred to Mr. Benton to tax, &c. [the costs of the motion,] which costs, when taxed, shall also be paid,” &c, Mr. Hand says, the course is first to make a rule to answer the complaint; and after-wards such ultimate rule thereon as the justice of the case may require. ' Hand's Rules, 125 to 127.) I mention this also to show that, in practice, a rule is deemed sufficiently certain in the sum to be .paid, where it refers to it as yet to be ascertained by the clerk. It cannot be denied that we might have ordered Mr. Nevins to be committed till, he should pay a certain sum, for instance $100.0, he to be discharged on paying a less sum to be ■ ascertained by the clerk. But it is objected, that we made the amount depend on a report subsequent. Any substantial difference is not perceived, however. In either case the committing officer must be furnished with a copy of the report, to show on what terms ■ he may allow the prisoner to go at large. In the case at bar, were we to lay aside all intendment, and take the rule strictly, it shows that the defendant had answered interrogatories, was heard by counsel, whereupon the reference was made, on filing the report upon which the amount of the fine was fixed, and the defendant ordered to pay accordingly or in default to be committed to the sheriff. It seems a forced and unnatural construction, to suppose that he was not all the time, during which these proceedings and orders were passing, actually within the jurisdiction of the court, receiving its directions in person or through -his counsel, according to. the usual course when a man is brought in on attachment. Blackstone says, that when thus brought in, he must either stand committed, or put in bail, in order to answer upon oath, such interrogatories as shall be administered to him. (4 Black. Comm. 287.)

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And we have the authority of no less a man than Lord Hardwicke for saying, that when an order to stand committed is pronounced after actual sentence for a contempt, against one in court, 'he- is instantly a prisoner, and the warden may take him- away to jail directly. (Whitchurch’s case, 1 Atk. 57.) Clearly, if he escape into the street, the sheriff may pursue him. In Whitchurch’s case, it was held he might take him on Sunday, because his going out of court was an es- > cape; and the arrest was not original, but a mere continuation of the former imprisonment. In the case before us, the man is told, “You must pay the sum due with costs to be ascertained, or your imprisonment must be continued.” In other words, “we camiot discharge you till that act of justice is done.” The course pursued seems to have been governed by the 2 R. S. 443, 2d ed. § 21, which requires, that “ a fine shall be imposed sufficient to indemnify such party [the party injured] and to satisfy his costs and expenses, which shall be paid over to him on the order of the court.” These were directed to be ascertained accordingly by the proper officer, and to be paid, and that the defendant be . committed till they were so paid. He might have been detained, no doubt, by a remand on the attachment, till the report came in, and even till the next term; but the more speedy, and therefore the more beneficial course, was taken for him, by ascertaining' forthwith the amount. Non constat but he preferred this course himself, and even suggested it.' And it is enough-, so far as the validity of the rule is concerned, to see that this court had power to make the rule. The authorities, are express, that at common law it need not contain any recital of the proceedings, nor indeed set forth any specific ground of commitment, (vid. the form in Rex v. Beardmore, 2 Burr. 792, 797,) though the revised statutes certainly do require that the ground should appear.

The common law of the case, was considered and laid down in Regina v. Paty, (2 Ld. Raym. 1105,) as long ago as the reign of Queen Anne, and has since been followed by the English courts. There the king’s bench

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were called on to discharge Paty on habeas corpus, because he had been illegally committed by the house of commons. And various exceptions of form were taken to the speaker’s warrant; such as that it did not allege a sufficient cause, and was not under seal, <fec. Gould, J., said, had the commitment been by an inferior court, it would have been bad, because it did not show a sufficient cause. But the commons, being a superior court, it was not reversible for form. Powys, J., said, commitments by a court need not be under hand and seal. He adds, “if all commitments for contempt, even those by this court, should come to be scanned, they would not hold-water. Our warrants are short, as for a contempt, or a contempt An such a cause. The house of commons is a great court; and all things done by them, are to be intended to be rite acta; and the matter need not be so specially recited in their warrants; by the same reason as xoe commit people by a rule of court of two lines; and such commitments are held good, because it is to be intended that we understand what we do.” Powell, J., mentions the case even of an inferior court, the ecclesiastical, and says, if they should imprison for a supposed offence which the king’s bench had adjudged not to be so ; yet habeas corpus would not lie for the error, inasmuch as the court had power to decide what was an offence under the ecclesiastical law. And see per Rolle, X, Anon., (Styles, 129,) S. P., as to' discharging by habeas corpus on the ground that the court •of admiralty, or a court of equity, had not jurisdiction. Powell, X, adds, in the case quoted from Lord Raymond, that 'the parliament being a superior court to the king’s bench, must be the only and final judges of the privileges, order or custom of parliament. But if the king’s bench should discharge persons on habeas corpus, committed for breach of* privilege, that would be to. judge of what belonged peculiarly to another and a superior court. He cites Lord Shaftesbury’s case; and denies that the king’s bench had any jurisdiction to examine a commitment by the house of commons. All the judges of England, except Holt, concurred that the

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king’s bench could not interfere: for Holt himself says there had been a conference. The same question came again to be considered in The Mayor of London’s case, (3 Wils. 188;) and it was agreed by the 0. P., that in cases of commitments for contempt by the lords or commons, or by any other court of general jurisdiction, no other court had power to interfere and relieve by habeas corpus, or in any other way, because there was no appeal. Be Grey, Ch. X, said, “ In case of a commitment by this court, or the king’s bench, there is no appeal.” Blackstone, X, said, “The sole adjudication of con-tempts and the punishment thereof in any manner, belongs exclusively and without interfering, to each respective court;” i. e. the superior courts. He adds, “infinite confusion and disorder would follow, if courts could, by writs of habeas carpus, examine and determine the contempts of others.”

I certainly do not, at this day, claim the utmost latitude allowed by these cases. I will not say that no cause need be assigned in the commitment. But where a cause is assigned in substance, even if it be without technical words, I do deny, on the authority of these cases, that, for a mere defect of form, the commissioner has any power whatever to interfere. He has no jurisdiction to say whether the form were proper or not. The commissioner, in this case, saw that Nevins had, by this court, been ordered to jail for not paying the money. And he was bound to know that he had no jurisdiction.

A mere defect of form would be no cause even for us to discharge on motion. Such defects in process are always amended in civil proceedings to collect moneys, whenever an application is made for a rule to amend. In the Lord Mayor’s case, Blackstone, X said: “ It would occasion the utmost confusion, if every- court of this hall should have the power to examine the commitments of the other courts of the hall, for contempts; so that the judgment and commitment of each respective court, as to contempts, must be final and without control. It is a confidence that' may, with perfect safety and security, be reposed in the judges

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and houses of parliament.” (Vide Platt, senator., in Yates v. Lansing, 9 John. R. 421; and Gist v. Bowman, 2 Bay, 182 .)

It was insisted at the bar, that here was no conviction of a contempt by Nevins, specified in the rule, If disobedience to an order of this court he a contempt, then here is one plainly expressed. The rule mentions a previous order to pay, which had not been complied with. It is, as said before, the very case of contempt mentioned in 2 R. 8 . 443, § 21. The discharge was, at the utmost, founded on a pretence that the proceedings wanted form. I desire not to be misunderstood, I admit that, in respect to the naked right of a commissioner to revise the question of jurisdiction, the English doctrine may be considered as slightly qualified by Yates v. The People, (6 John. R. 337.) ' There, on its appearing positively by the return to a habeas corpus, that chancery had convicted as for a contempt, when, as the commissioner thought, there had been none, he was allowed to overrule the court, and discharge the prisoner. Probably, the revised statutes mean to follow that case, by giving a similar power in respect to these convictions by all courts, courts even of general jurisdiction. It is not necessary for me to deny that they do. It is proper that I should, in the first place, examine some statutory objections of a different sort, which have been urged against this conviction; leaving it to stand, that on return to a habeas corpus, showing we had raised a new case of contempt, warranted neither by precedent, principle, nor statute, the commissioner might pronounce our order to be a nullity.

I infer from the course of the argument in behalf of Mr. Nevins, that the commissioner was governed mainly by supposing that this was a commitment without process. We were told loudly that we had violated the revised statutes, in committing by rule and not by writ. Perhaps, if the statute has unequivocally ousted us of all authority to commit by rule, we must then, quoad hoc, be considered

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a court of inferior jurisdiction, which, it is conceded, has no power to commit, even for a contempt, without a regular warrant in writing. (Mayhew v. Locke, 2 Marsh. 377 . 7 Taunt. 63, S. C.) But we have already seen that, at common law, courts of record might commit by rule. And in the case last cited, it was agreed that the chief justice might commit a man by mere oral direction to the marshal; and this for a general cause, e. g. to answer whatever might be objected against him. (Throgmorton v. Allen, 2 Rolle’s Abr. Trespass, (C.) p. 558.) On the latter case being cited, - in Mayhew v. Locke, Gibbs, C. J. remarked according to Marshall’s report—“Was that a commitment by the chief justice in court, or out of it? But I should think the latter; because, if it had been in court, it would have been recorded by the officer immediately; and there could have been no doubt 'about it.” In 1 Burn's Just. 604, (22d ed., tit. Commitment, § 3,) after saying that a justice’s warrant' should be written, &c., in a certain form, and sealed, it is added, “But this must not be intended of a commitment by the sessions or other court of record; for there, the record itself or the memorial thereof, which may at any time be entered of record, is sufficient without any warrant under seal.” But we are reminded of what was said by Clinton, senator, in Yates v. The People, (6 John. R. 513,) viz., that “ wherever a man is deprived of his personal liberty, our law seems to require the solemnity of a writ or warrant,” citing Furlong v. Bray, 2 Keb. 711, 2 Sound. 182, and 1 Mod. 272. Such a restriction would take. away the power of special bail, the power to arrest on suspicion, the power of watchmen,- the power to arrest a man for disturbing a court, or to arrest an open rioter or disturber of the peace; even a man attempting to rob or murder, or a mad man scattering fire-brands. The learned senator admitted the distinction to be quite unimportant; and when the case came up in another shape, (Yates v. Lansing, 9 John. R. 416,) Platt, senator, (afterwards Mr. Justice Platt,) denied the position, saying expressly that courts of record may commit by order or by writ. What

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ever can be made of Furlong v. Bray, against the power even of the court of chancery to imprison without writ, it was, in truth, expressly adjudged by the K. B. so long ago as the 39 Eliz. that chancery may imprison by order, without writ, on conviction for a contempt. (Taylor et Beale, 2 Roll. Abr. 559, title, Imprisonment justifiable by officers, (D.) pi. 3.) Lord Hale says, “ the power of a justice of the peace, differs from the power of a court; for the court of king's bench may commit by order, and so may the court of sessions-of the peace, because there is or ought to be a record of the commitment.” The power at common law,'therefore, cannot be questioned. The dictum of Mr. Clinton, was a mere semble, founded on a case which had been contradicted by the whole current of authority and practice, both before and since it-was decided.

We now come to the revised statutes, which have in no instance required courts to pursue a different practice from the common law, at least, not in the institution and pursuit of the prosecution to conviction. I speak particularly of proceedings like those now in question, for a contempt to enforce civil remedies and protect the rights of parties in civil actions. (2 R. S. 440, 2d ed.) . The provisions as to preliminary proceedings are not materially different in respect to criminal contempts. (Id. 207, 8.) Contempts in presence of the courts, are made subjects of conviction without previous process, and all other contempts may be pursued as at common law: that is, by rule to show cause, followed by attachment, or by attachment absolute in the first instance. (Id. 441, § 2, 3, 5.) These three' sections. furnish the general rule, and the intermediate fourth section forms no exception. That relates to the more ordinary case of a rule to pay costs, either on granting or refusing a motion, or the costs or other sum of money on a rule to show cause, or on attachment. It gives the courts more power, in the ordinary case, and in the case of a rule to show cause, than was usually exercised before. They commonly required an affidavit of demand and non-payment, which was. followed

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by an attachment and interrogatories. These last, the 4th section deemed a useless circuity; and, therefore, it gives an execution forthwith, which it calls a precept. The statute no where forbids the court to proceed in the former common law mode; but merely provides, that it may commit .in a particular form short of that. We are told that, in The People, ex rel. Lovett, v. Rogers, (2 Paige, 103,) the learned chancellor granted a precept in a case like' the present, even after conviction on attachment and answer to interrogatories. The necessity of such- a step was not, however, debated. The precept would not vitiate the order to commit, and was certainly well enough in practice, for more abundant caution. We are put to inquire, whether the statute has taken away the power to act without it. With regard to the form of conviction, as whether by rule or not, the statute has no way interposed, nor pretended to interpose; though it certainly has in respect to the commitment, both in criminal and civil cases. In criminal cases, it provides, that the order or warrant of commitment shall specify the particular circumstances of the offence. (Id. 208, § 13.) In civil cases, it is made conformable to the object of the proceeding. "If it be to enforce the performance of a duty, the statute says, that the order and process of commitment shall specify the act or duty to be performed. (Id. 444, § 24.) In other cases, the order and process of commitment shall specify the duration of the imprisonment. (§ 25.) In the case at bar, the duty to be performed, and the duration of the imprisonment, are both specified in the rule. But it is supposed that the word process, necessarily means a writ or warrant; and implies, that there cannot be any imprisonment without it. I admit that the word process usually signifies a writ or warrant; but it also means a good deal more. It means all the proceedings in a cause, after the first step. (Tomlins1 Diet. tit. Process.) In that sense, it would comprehend a rule or order. But taken more strictly, there, is no doubt that a rule or order to commit, as plainly comes within the meaning of the word process, as a precept - under the fourth

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section, or a capias ad respondendum or an execution. The definition of process, given by Lord Coke, comprehends any -lawful warrant, authority or proceeding, by which a man may be arrested. He says, •“ Process of law is twofold, viz. by the king’s writ, or by due proceeding and warrant either in deed or in law, without writ.” (2 Inst. 51, 2.) By warrant of law, he comprehends any authority of law, as is plain by the instances which he' gives. He adds, “ If treason or felony be done, and one hath just cause of suspicion, this is a good cause and warrant in law to arrest any man.” Again: u A watchman may arrest a night walker by .warrant in law.” And he concludes by saying, that “a commitment by lawful warrant, either in deed or in law, is accounted in law due process or proceeding .in law.” (Vid. also 6 John. R. 478, and the boohs there cited by Lansing, chancellor, in Yates v. The People.) The constitution says, that no person shall be deprived of his liberty without due process of law. Yet, who ever supposed that this took away the right to arrest on a bail piece, or for an escape without a sealed warrant, and so of many cases. We have already seen, that a rule to stand committed has always been a very common warrant for the sheriff to commit. It is, therefore, • process; and the statute saying, order and process of commitment, is either no more than a repetition, or, which is more probable, the statute is to be understood distributively, viz. that when a precept issues, which would more commonly be called process, it should fix, the time, &c.;. and when the proceeding is by rule or order, this should also do the same thing. It cannot be, that this accidental dropping in of an equivocal word, was intended to deprive all courts of their known and acknowledged power to commit except in a new form never before required. Had any such thing been intended, it seems to me the provision would have been direct and explicit.

Then the statute of habeas corpus declares, that when, on the return of the writ, there shall appear to have been a •contempt plainly and specifically charged in the commit

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ment, by some court, officer or body, having authority to commit for the contempt so charged, it shall be the duty of the court, or officer, before whom the writ. is. returnable, forthwith to remand the prisoner, if the time of detention have not expired. (2 R. S. 469, 470, 2d ed.) That is this case; and the law is the same in relation to all other commitments absolute. Whenever the commissioner sees that the prisoner is properly detained, it is his duty to remand; that is, whenever he is properly committed and holden by authority of law, unless in a bailable case where bail is offered and receivable; and this, whether there be any warrant in deed, that is, a formal warrant under hand and seal, or warrant in law, which means any legal authority. The words legal commitment, mean any act of committing, justifiable by the law of the land.

On the whole, we are clear, that the commissioner acted in the case before us entirely without jurisdiction. Even had there been no entry at the time of the arrest, it might have been made, we have seen, at any time, according to the truth of the case; and if the imprisonment were not warrantable, we would have discharged the prisoner on motion. Proceedings like this should, in point of form, be finally judged of by the tribunal where they originate. The commitment cannot detail the entire proceeding, so ás fully to inform another court of the rea- ■ sons why we punish for a contempt. We cannot be informed by the court of errors or chancery, through any process they could issue short of a long recital in Iubc verba, of the reasons on which they may have acted in a similar case. We, therefore, could not interfere with their practice, and scarcely ever with their jurisdiction, on a habeas corpus returned before us.

We are of opinion that the proceedings of the commissioner should be reversed.

Ordered accordingly.