Palmer v. Kelly — 4 Sarat. Ch. Sent. 575

Majority

p. 575

F. A. Palmer v. E. Kelly, and others.

April 21 ;

May 8, 1847.

Headnote

A defendant committed for contempt, in violating an injunction by selling property equitably belonging to the complainant, after two months imprisonment, applied to be discharged on the ground that he had no means to pay the fine imposed on him, equivalent to the value of the property. The application was refused, because the defendant, instead of acknowledging his error, denied the offence of which lie had been convicted ; and thus impaired the credibility of his statement as to his ability to pay the fine.

This was a creditor’s suit, in which the usual injunction was issued and served on Kelly, the judgment debtor, restraining him from disposing of his property in any manner. He immediately sold some carriages in his possession, and alleged to be his, received the price, and expended it in his support and personal expenses. The complainant obtained an attachment against him for violating the injunction. He denied the charge, the matter was referred to a master, who, after a long and expensive investigation, reported that he was guilty of the offence, and that the value of the property sold by him, in defiance of the injunction, on which the complainant had a lien, was $250. The court confirmed the master’s report, and made an order, fining the defendant for the contempt in the value of the property and the costs of the proceeding; and directing him to be committed until the fine was paid. He was committed accordingly, on the eighteenth of February, 1847.

He now moved for a discharge, on affidavits that he had no property or means with which he could pay the fine.

The opinion of the court notices the affidavits.

p. 576

R. Reed, for the defendant, Kelly.

A. C. Morris, for the complainant.

The defendant applies to be discharged from imprisonment, under the act of 31st January, 1843. (Laws of 1843, Oh. 9.) After the service of an injunction, forbidding his disposal of property in his possession, on which the complainant had acquired a lien by this suit, he sold property of the value of $250, and received the proceeds, and used or spent the same. When accused of the violation of the injunction, he stoutly denied it, and put the complainant to an expense of more than $100, in establishing the fact. It was fully established to the satisfaction of the master and of the court; and now on reading again the whole proceedings, I cannot view the defendant’s conduct otherwise than as a wilful or reckless disregard of the process of this court, and violation of the rights of the complainant. He was committed on the 18th of February last. In his petition, he makes no acknowledgment of his fault. On the contrary, he persists in asserting that “ he does not know or believe that he ever did violate the injunction, in any way or manner.”

This bold and impudent statement, does not permit the court to give that credence to his allegations in respect of his property, which it would be glad to entertain ; and the belief and the want of information on that subject, deposed to by Sayers and the Parsons, are not satisfactory proof of the point.

I can refer to my course in respect of these commitments, to show how tender I feel in directing or continuing the imprisonment of parties for contempts. But I am constrained to declare, that in this case I do not feel warranted in granting the relief sought.

The property sold, was in equity, the complainant’s. But for the defendant’s disposal of it in direct defiance of the law, it wuuld before this time, have been applied on the complainant's debt, and been in his actual enjoyment. The defendant’s act was in moral delinquency, but little short of a larceny. And if, under such circumstances, after an imprisonment of two or three

p. 577

months of a very lenient character, he should, on his affidavit of want of property, he discharged; it would be an encouragement to rogues and ill disposed persons, to disregard the process of law and the rights of parties, which I am very reluctant to afford.

The motion must be denied.