Davison's Case.

Lord Eldon, put this question to the Judges:-" Whether, if the Court of Common Pleas, having adjudged an act to be a contempt of court, had committed for the contempt under a warrant stating such adjudication generally, without the particular circumstances, and the matter were brought before the King's Bench, by return to a writ of habeas corpus, the return setting forth the warrant stating such adjudication of contempt generally-whether, in that case, the Court of King's Bench would discharge the prisoner, because the particular facts and circumstances out of which the contempt arose were not set forth in the warrant." The Judges delivered their unanimous opinion that in such a case the Court of King's Bench would not liberate. The House thereupon adopted the opinion and affirmed the judgment below. In accordance with this rule is Case of Sheriff of Middlesex (11 A. & E., 273; 39 E. C. L. R.); People a. Nevins (1 Hill, 154); Yates' Case (4 Johns., 315; S. C. 9 Ib., 394); Bass Crosby's Case (3 Wils., 183); Ex-parte Kearney (7 Wheat., 38, 43); 2 Barb. Ch., 696.

II. The statute has prescribed the duty of the court in the most imperative terms, adding a prohibition against the re-examination on habeas corpus of the adjudication for the contempt. No matter what other facts may be returned, the statute does not make any exception when enjoining this duty and adding its prohibition. Relief must be obtained against an irregular conviction in some other manner. It was intended to give to the commitment a conclusive effect. In Ex-parte Kearney (7 Wheat., 38, 43), Justice Story says "If this were an application for a habeas corpus after judgment, on an indictment for an offence within the jurisdiction of the Circuit Court, it could hardly be maintained that this court could revise such a judgment or the proceedings which led to it, or set it aside and discharge the prisoner. There is, in principle, no distinction between that case and the present-for when a court commits a party for a contempt, their adjudication is a conviction, and their commitment, in consequence, is execution." Ex-parte Beatty (12 Wend., 229) arose under the new and express authority given by the 46th section of the Non-imprisonment Act (Laws of 1831, 396).

III. It is unnecessary to bring the party into court by an attachment, when the prosecutor elects to proceed under the

Davison's Case.

practice of procuring an order to show canse. (Albany City Bank a. Schermerhorn, 9 Paige, 372; People a. Nevins, 1 Hill, 154.) Where the party elects to proceed by an order to show cause, it is for the court granting the order to adjudge whether the service was or was not proper. A justice acting as Supreme Court commissioner cannot review that decision on habeas corpus. The commissioner not having power to review, in this collateral way, the adjudication as to the sufficiency of the service of the order to show cause, is bound to intend that the court of general jurisdiction had every fact proven essential to a regular conviction. While correct and accurate practice dictates full recitals in an order of any kind, showing what papers were before the court, no statute or common-law rule renders this, or any recital, imperative, or renders void the order. On the other hand, if the order recited that certain papers and proofs were before the court on the motion, the party, if the case came up on appeal, or even in any collateral way, would be allowed to show that many other papers and proofs were before the court, and he could have the same benefit from them as if they were recited in the order. (See Ex-parte Beatty, 12 Wend., 229, 232, 233.)

IV. The only other suggestion made by the counsel for the relator, which was pressed by him as entitled to any weight, arises from the fact that, following the order of the court, the attorney has made out a joint commitment, and strictly adhered to the adjudication of the court in the mandatory part of the mittimus, and the relator claims that each of the defendants is to stand committed until the two perform a certain act. 1. This objection, if well founded, cannot be taken advantage of here. It could only be raised on appeal, when the facts on which the court made the order might be re-examined. The court may have determined that these defendants had conspired together, so to complicate the subject-matter each was required to perform, as to render him responsible for the acts, and doings, and consequences thereof of his co-defendant. This may have been erroneous on the part of the court, but that decision cannot be reviewed here. The habeas corpus is not an appellate proceeding. 2. This construction of the order is hypercritical. It is sacrificing the substance and clear meaning to the letter. Qui hæret in litera, hæret in cortice, is as applicable to the construc

Davison's Case.

tion of an order or judgment of a court as to an act of the Legislature. It is not at all likely, with our present views of the law, that any court would tolerate such a practical construction of the order; but decisions, seemingly more strange than this, have been made by courts, on mature deliberation, which have stood the test of criticism and attack. No express provision of law is hereby violated, even upon a strict construction of the order. 3. We refer again to that class of cases which, in the language of CRESSWELL, J., hold, "The court had undoubted authority to issue the writ; and it is equally beyond a doubt that we have no authority to inquire whether it was issued regularly or not." (In re Andrews, 4 M. G. & S., 226; 56 E. C. Law R.)

James R. Whiting, for the prisoner.-I. If the misconduct alleged in the mittimus is a contempt of the court, then it was a contempt of the general, not of the special term. The special term of the court has no power to punish a contempt, not committed against it, but against a superior authority. (Jud. act, 3 Rev. Stat., 5 ed., 278; M. P., 196, § 196.)

II. The mittimus is bad because the special term did not acquire jurisdiction of the person of the prisoner, before his commitment. The party sought to be punished must be either voluntarily, or by compulsion, personally brought before the court. This is essential to jurisdiction. (People a. Nevins, 1 Hill, 154; 5 Ib., 285; 5 Johns., 115.) This must be by attachment. (1b.; 4 Black. Com., 287; 19 Barb., 475; 9 Paige, 372; 3 Hill, 663, note.) An attachment may issue in the first instance with or without notice; but no commitment can take place until the party charged is afforded an opportunity of being heard in his defence. (3 Rev. Stat., 5 ed., 850; M. P., 535, §§ 5, 12, 17, 18; see re Ryan, 2 Code R., 69; Ex-parte Whitechurch, 1 Atk., 57.) In People a. King (9 How. Pr., 97), an attachment for non-payment of money, and commitment, may issue in the first instance-not so in other cases.

III. A mittimus cannot go in the first instance, except in cases where the disobedience is the non-payment of money ordered by the court to be paid; and in such cases it is in the nature of an execution. (People a. King, 9 How. Pr., 97.)

IV. The mittimus is irregular and insufficient. 1. Because

Davison's Case.

it does not show on its face that the court had jurisdiction of the person of the defendant. 2. Because it does not show that it was in the power of the prisoner to do the thing required. 3. Because it simply states that the prisoner wilfully refused, without stating that he could do the act. 4. It does not show that the defendant had any knowledge of the proceedings to punish him. 5. On the contrary, it shows he was ignorant of all the proceedings. 6. It orders him to be kept until he shall pay a certain mortgage to a third person not a party to the record of judgment, and so is bad. 7. It directs him to be kept in close custody until another person shall make the conveyance. 8. If Joseph Davison shall not convey, then Erastus is to be kept in custody until he, Joseph, does. 9. It directs them to "convey," instead of executing a conveyance. 10. The decree and mittimus both declare that the prisoner had no title as against the plaintiffs, the Pitts-that the deed from Joseph to Erastus was void.

V. For irregularities in a commitment, the prisoner is ent tled to be discharged on habeas corpus. 1. For irregularities on a commitment from the Court of Chancery, prisoner discharged. (Ex-parte Beatty, 12 Wend., 229.) 2. Reliet afforded by habeas corpus against excessive bail. (Jones a. Kelly, 17 Mass., 116.) 3. On insufficient affidavit to hold to bail on a capias ad respondendum. (Nelson & Gray a. Cutter & Tyrell, 3 McLean, 326.) 4. It may be done either way, on habeas corpus or on motion. (United States a. Jenkins, 18 Johns., 305.) 5. The process, if valid on its face, may protect the officer, although it may be shown to be void for want of jurisdiction. (Savacool a. Boughton, 5 Wend., 170; Jones a. Hughes, 5 S. & R., 299; Paul a. Van Kirk, 6 Binney, 123; Taylor a. Alexander, 6 Ohio, 147.)

VI. The case is not res adjudicata. No court or judge has passed upon the questions involved on this habeas corpus. 1. Nothing was done before Judge McCunn-the prisoner was not brought before that judge-the case had no status before. him. (Cone a. Chandler, 11 Mass., 83.) 2. The return shows that nothing came before Judge Barnard except the inability of the prisoner to comply with the judgment. 3. So before Judge Ingraham. The questions now raised were not passed upon by him. 4. Justice Sutherland did not pass upon the questions

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now agitated; besides, he gave leave to renew the motion. Where several questions arise in a cause, and the opinions agree in regard to all of them, and the other members give a silent vote, then all the questions are deemed decided. Where the court consists of several judges, two or more of whom deliver opinions, and all arrive at the same result, but for different reasons, this is not conclusive. (James a. Patten, 2 Seld., 9.)

Nelson Chase and D. McMahon, for the creditor, at whose suit defendant was imprisoned.-I. It is not proper to attempt to review the order of Mr. Justice Davies, granted on the 30th December, 1857, in this collateral way by a writ of habeas corpus. (2 Rev. Stat., old p. 568, § 42; 3 ed., p. 664, § 57.) 1. The order of Justice Davies was within the province of a court of equity to make, in order to carry its decrees into force. The only way to review that exercise of power was by an appeal therefrom. A court of equity have power to enforce decrees. (Ludlow a. Lansing, Hopk., 231; 2 Rev. Stat., 4 ed., 355, § 56; Ib., 4 ed., 768, § 1, subd. 8; Code R., § 285.) 2. It was not necessary that the defendant should have been personally served with notice of the proceedings to punish him, as for a contempt.

The Statute of Contempts contemplates two modes of adjudging a party guilty of contempt. 1. By preliminary arrest and putting interrogatories to him. 2. By order or motion to show cause. The latter course was here adopted. The defendants absenting themselves from the State, the court prescribed the mode of service, viz., by service on the attorney. This the court could do. (See concluding part of Justice Sutherland's opinion also, Watson a. Fitzsimmons, 5 Duer, 629; Case of Yates, 4 Johns., 317; Yates a. Lansing, 9 Ib., 395.) This objection, as appears by the return, was taken on the 30th December, 1857, by the defendants' counsel, and was overruled by Justice Davies. It is therefore res adjudicata in this case, and cannot be disturbed, even if the learned judge erred. (Higbie a. Edgarton, 3 Paige, 253.) In the latter case, it was held that the way to review it was by appeal. It must be recollected, also, that the judgment-roll, also summons to attend before the referee, were personally served on the defendants.

II. The commitment was in all respects regular. 1. The