McMahon a. Allen. it will be time enough to move after the defendant has taken a default. (Ford a. Turner, 5 Duer, 686.) II. The Code does not provide for a stay, but leaves it to the discretion of the court, upon a proper application made for that purpose. 1. Section 334 provides an undertaking to pay only costs of appeal (that is, from the order), and is necessary to the validity of the appeal. 2. If the Court of Appeals affirm the judgment of this court, the defendant will have judgment for all the costs in the cause, but no security. 3. Had the defendant appealed, he could not have stayed proceedings without security to pay all these costs. 4. Sections 335-339 refer only to judgments. 5. The distinction between appeals from judgments and appeals from orders is fully recognized by the Code in sections 11, 323, 330, 331, 334. So, also, sections 335-340 speak only of judgments. 6. Section 342 provides that, in cases not provided for in sections 345 to 349, the giving the undertaking for costs (section 344) should stay all proceedings upon a judg ment. III. The case in 10 How. Pr. (Curtis a. Leavitt), referred to by the appellant, has no application to the case of an appeal from an order. It was a special case of an appeal from a judgment, and not meant to conflict with the opinions of the court in previous cases of appeals from orders. Inasmuch as the courts held it was not within section 345, the provisions of section 344 made the appeal a stay of proceedings. IV. In the cases exactly similar, this court and others have held that the appeal from an order was no stay. (CLERKE, J., Forbes a. Oakes, 2 Abbotts' Pr., 120; MITCHELL, J., Story a. Duffy, 8 How. Pr., 488; Gen. T., Hicks a. Smith, 4 Abbotts' Pr., 285; order for new trial, Bacon a. Reading, 1 Duer, 622.) 1. The same cases hold the proper practice is, to make a motion for a stay, which can be had upon proper terms. 2. All the defendant would ask is, security for any judgment that may be rendered against the plaintiff in the Court of Appeals. Upon this the defendant would consent to a stay of proceedings. INGRAHAM, J.-The general term in this case reversed the order of the special term, and ordered a new trial.* From this * Reported, 12 Ante, 275. McMahon a. Allen. order the plaintiff appealed to the Court of Appeals, and gave an undertaking in $250, under section 334 of the Code. The defendant, notwithstanding such undertaking being filed, noticed the cause for trial again under the order of the general term. The plaintiff now moves to strike the cause from the calendar, upon the ground that the undertaking filed by him stayed all proceedings for a new trial until the decision of the Court of Appeals. There is no provision in the Code providing for such a case as the present,-prescribing directly the mode in which proceedings in the court below are to be stayed,-nor does the act of 1857, allowing an appeal in such a case, make any such provision. Section 334, under which this undertaking is given, however, was not intended to give a stay in any case on filing the undertaking in $250. It is not given as a security for any just claim, but to provide for the costs and damages which may be awarded against the appellant on the appeal, and no appeal is valid without it, whatever other security may be given for the claim. In Valton a. National Loan Fund Life Assurance (19 How. Pr., 515), Mr. Justice Gould held that proceedings on such an appeal did not stay the entry of judgment in the court below, in pursuance of the order appealed from, and the Common Pleas adopted a similar rule in Tiers a. Carnahan (3 Abbotts' Pr., 69). And the other sections, from 334 to 343, which apply to a stay of proceedings, are confined to cases in which a judgment is recovered, and not to an appeal from an order. I conclude, therefore, that the only way in which, in such a case as this, the proceedings in the court below can be stayed after an order for a new trial has been made by the court, is by a motion directly for that purpose in this court. On such an application, the court can impose such terms as to security as will be sufficient to protect the respondent against loss, if in the Court of Appeals there should be a decision adverse to the decision of the general term. Such is the practice on appeals from the special to the general term, where no judgment is entered; and in the absence of any provision in the Code, the same practice should, from analogy, be followed. The motion to strike the cause from the circuit calendar must be denied. Defendant's costs, $10-to abide event. Davison's Case. DAVISON'S CASE. Supreme Court, First District; At Chambers, November, 1861. POWERS OF OFFICER ON HABEAS CORPUS.-COMMITMENT BY COURT OF GENERAL JURISDICTION.-CONTEMPT. If it appears, on the return to a writ of habeas corpus, that the prisoner is detained in custody for a contempt specially and plainly charged in the commitment hy some court having authority to commit for the contempt charged, it is the duty of the officer conducting the proceeding forthwith to remand the prisoner into custody. In a commitment for contempt by a court of general jurisdiction, all the preliminaries to warrant the imprisonment need not be set out. The proper remedy, in case of irregularities in the proceedings by which a party has been adjudged guilty of contempt by a court of general jurisdiction, is by motion in the court in which the judgment was rendered. Application on habeas corpus for discharge from imprison ment. Judgment was rendered in this action, on a report of referee, that the defendants specifically perform their contract with the plaintiffs, and convey to them a house and lot in Twenty-sixthstreet, New York (now estimated to be worth $12,000), and for which the plaintiffs had principally paid. This judgment was rendered by the court on the 7th day of May, 1856, and was not appealed from. A certified copy of this judgment was personally served on the defendants, with a summons to attend before the referee, Mr. Cambreleng, to carry into effect the decree by executing the conveyance. On the 27th of June, 1856, the parties attended before the referee, Mr. Cambreleng. The plaintiffs, with their counsel, offered to perform their part of the decree, and requested the defendants, who were then and there not present, but were represented by counsel, to perform their part of the decree. In excuse of performance, the defendants set up, by their affidavits, matters alleging their inability to comply. The referee overruled their excuses, and they then refused to comply. The VOL. XIII.-9 Davison's Case. referee, on the 30th of June, 1856, made a special report to the court of what transpired before him on the 27th of June, 1856, annexing the defendants' affidavits. On that report, and on the judgment-roll, Mr. Justice Davies granted an order for the defendants to show cause why they should not be punished as for a contempt. As the defendants were absent from the State, so that service of papers could not be made, the judge ordered the motion-papers to be served on their attorneys. After the papers were so served, an adjournment was procured by defendants' attorney, to enable him to communicate with his client, which he did, and he was instructed by Erastus Davison to defend the motion. That motion was heard and fully discussed before Mr. Justice Davies, who overruled the objection that the papers were not personally served, and who, on the 30th day of December, 1857, made an order of commitment of the defendants until they should comply with the decree and convey the premises in controversy. On this motion, before Mr. Justice Davies, the same excuses were set up as before the referee, but Mr. Justice Davies overruled them, and adjudged the defendants to be guilty of a contempt. No appeal was taken from this order. The defendants were absent for nearly three years, until, in November, 1860, Erastus Davison was arrested and committed to Eldridge-street prison, where he lay at the time of the present application. A writ of habeas corpus was sued out to bring him before Mr. Justice Ingraham, at chambers. The sheriff returned, he held him under the warrant of commitment. The creditors, at whose suit he was imprisoned, made a special return of facts. To these returns traverse was put in, but the following facts were admitted in the return, by not being denied in the traverse. 1. The rendition of the judgment on the 7th of May, 1856, adjudging that the defendants perform specifically. 2. That the summons to attend before the referee, to carry into effect the decree, and the decree, were personally served on the defendants. 3. The making the order by Mr. Justice Davies, directing the service of the order to show cause to be made on the defendants' attorneys, in lieu of the defendants, who could not be found. Davison's Case. 4. The making the order by Mr. Justice Davies, directing the defendant to be punished for a contempt, and that on the hearing of that motion, objection was taken that the defendants had not been personally served, which was overruled. 5. That subsequently a motion was made before Mr. Justice Barnard to be discharged from the arrest, on the ground of inability to comply with the order, and his denial of the same. No appeal was taken from his order. 6. That a motion was also made before Mr. Justice Sutherland, on the grounds claimed on this habeas corpus, that the commitment was irregular, and that Mr. Justice Sutherland denied that motion.* The defendant claimed, however, in his traverse, that Judge Sutherland did not adjudicate on this question. After taking some proofs under the traverse, the counsel for the sheriff' claimed that the court could not go behind the commitment. No A. J. Vanderpoel, for the sheriff.-I. The commitment for contempt was issued by a court of general jurisdiction having authority to commit for contempt, and the contempt is specially and plainly charged. 1. The provisions of the statute in substance are at 3 Rev. Stat., 887, 5 ed; 2 Ib., 567, 1 ed. 2. The commitment under which the relator is held is very full and special, and plain in charging the contempt. There is no necessity of alleging that the prisoner was before the court. facts need be set forth, except the adjudication that the party was in contempt. If the presence of the prisoner was necessary, it will be intended that he was present, rather than that he was, when absent, adjudged guilty of wilfully disobeying the order of the court. 3. As to courts of general jurisdiction, the maxim is "omnia presummitur esse rite acta," for the very good reason given by Powys, J., in Requia a. Paty (2 Ld. Raym., 1108), "because it is intended that we understand what we do." 4. The commitment is much more special than that under which Israel Kahn was remanded by Justice Bosworth (11 Abbotts' Pr., 147). When the case of Burdel a. Colman was before the House of Lords (5 Dow., 199), the Lords, through * The case of Pitt a. Davison (12 Ante, 386) contains a report of that application of the prisoner to be discharged. |