Matter of Hackley.

If then these questions are to be passed on by the court on habeas corpus, it necessarily follows that there must be suffi cient on the face of the commitment to enable the court to see that the commitment does charge a contempt, and that the contempt charged was one for which the committing court or body had authority to commit. The mere refusal to answer a question is not a contempt. The statutory provisions respecting contempts for a refusal to answer, are found in part 3, chapter 8, title 13; and part 3, chapter 3, title 2, article 1 of the Revised Statutes. Part 3, chapter 8, title 13, provides that "every court of record shall have power to punish any neglect or violation of duty, or any misconduct by which the rights or remedies of a party in a cause or matter depending in such court may be defeated, impaired, impeded or prejudiced in the following cases: 1st. 2d... 3d. . . 4th and 5th, all persons summoned as witnesses for refusing or neglecting to obey such summons or to attend or be sworn or answer as such witness."

Thus the statute makes the contempt of a refusal to answer hinge upon the fact of there being depending in the court a cause or matter, the rights or remedies to the parties to which might be impaired by the misconduct of refusal. Unless such cause or matter be depending, there is no contempt in refusing to answer. These two things, then, are requisite to make up a contempt of the kind in question:

1st. That there should be a cause or matter in question, the rights or remedies of the parties to which might be impaired by the misconduct of a refusal to answer.

2d. A refusal to answer.

If either of these two be wanting there is no contemptone of them alone is not sufficient-both must concur. Unless a commitment states both the charge is no contempt. The commitment in question omits to state the first, and is consequently for that reason defective. The provisions of part 3d, chapter 3, title 2, article 1, although not so expli

Matter of Hackley.

cit as the other provisions, yet in substance are the same. Section 1st, among other things, gives to the courts of record, treated of in the 1st chapter of the act, power to issue subpoena, requiring the attendance of any witness being in any part of the state, to testify in any matter or cause pending in such court. Subdivision 5, of section 8, gives the court power to punish as for criminal contempts, the contumacious and unlawful refusal of any person to be sworn as a witness, and when so sworn, the like refusal to answer any legal and proper interrogatory.

These two sections are intimately connected; sub. 5, sec. 8, depends on sec. 1. Section 1 provides the power for bringing the witness before the court. Sub. 5 of sec. 8 provides the power to get his testimony after he is there. Unless he is brought before the court, it is clear no step can be taken under subdivision 5 of sec. 8. He cannot be brought unless there is a cause or matter pending, and consequently he cannot be proceeded against under sub. 5 of sec. 8, unless there is a cause or matter pending. It surely cannot be contended that the court, or a lawyer present before the court, is at liberty to call upon any man who happens to be in the court room, and swear him, not in any cause or matter pending, but merely generally, either to tell the truth, the whole truth and nothing but the truth, or true answers make to such questions as shall be put to him, and proceed to ply him with questions, and in the event of his refusing to answer commit him for contempt. The fact of there being some matter or cause pending is the very foundation of the right to commit. Without that foundation the court cannot proceed a single step toward committing for a contempt. As under the other provisions, so under these, two things are requisite to make out a contempt of the kind in question: First, that there should be a cause or action pending; second, a contumacious and unlawful refusal to answer a legal and proper interrogatory. Both must be stated in the commitment. If the commit

Matter of Hackley.

ment fails to state one it charges no contempt. The commitment in question omits to state the first, and is therefore defective. Viewing this also as a question of jurisdiction, the commitment is defective. A court has no power to commit for a refusal to answer, unless there is some cause or matter depending therein, the rights or remedies of parties to which might be impaired by the misconduct or refusal. A commitment must state sufficient facts to show affirmatively the jurisdiction and authority to commit. When a court of limited jurisdiction commits a person, the process should not only state that there was a cause or matter depending, but should also state its nature. It will not be presumed that the subject matter of the cause, &c., fell within its jurisdiction. It is a rule well established that all process, out of a court of limited jurisdiction (especially such process as is designed to abridge personal liberty,) must clearly show affirmatively that the court had jurisdiction. In my view the court of sessions, having cognizance of crimes only, is a court of limited jurisdiction, and that consequently the commitment in question is defective, in not showing the cause or matter depending to be of a criminal nature; for if the cause or matter were of a civil nature the proceedings were coram non judice, and the court had no authority to commit for the contempt. charged. I am aware it has been held that the correctness of the decision, as to the pertinency of the question propounded, and of the privilege of the witness to refuse to answer, will not be inquired into on a habeas corpus. That is not the question here. Upon the facts that appeared before the court below the decision may be correct. These facts are not before me. The only question is whether the committing court has embodied in its process sufficient facts to sustain it. Those facts may all exist, yet if they are not in the committal it is void. Even were I disposed to inquire into the legality and propriety of the question, I could not do so, as nothing appears on the commitment

People ex rel. Braman agt. Culver.

upon which I could form an opinion. The commitment simply states that the following question was asked and an answer refused: "What did you do with the forty thousand dollars which you received from Thos. Hope, on the 11th of February, for the purposes of the street-cleaning contract?"

Without knowing whether there was a criminal charge pending, and what it was, it will be impossible for me to say whether the question was legal and proper; unless, indeed, it is to be assumed that the grand jury is a species of inquisitorial body, with full, unlimited power to send for any and all persons in the community, and institute an inquiry into their business and social affairs, or the dispo sition of their property.

I am of opinion that it does not appear that the prisoner is in custody for any contempt, plainly and specially charged in the commitment by any court, officer or body having authority to commit for the contempt charged.

The petitioner is, therefore, entitled to his discharge.

SUPREME COURT.

The PEOPLE ex rel. ELIAS BRAMAN agt. ERASTUS D. CULVER, City Judge of the City of Brooklyn.

Where a mortgagor, in the presence and with the consent of his tenant, relinquished all right and title to the mortgaged premises, placing them in the actual possession and occupation of the mortgagee, held that the tenant's term ended, his assent concluding him from claiming further tenancy; and that the premises were surrendered to the paramount title of the mortgagee.

The surrender of title by the operation of law is "an act done by or to the owner of a particular estate, the validity of which he is estopped from disputing, and which could not have been done if the particular estate had continued to exist."

General Term, Second Judicial District, January, 1861. On the 31st of July, 1859, Abram Brower purchased of Tallmadge Delafield and wife, a house and lot on the north side of Putnam avenue, Brooklyn, for $4,000.

People ex rel. Braman agt. Culver.

On the 3d of April, 1860, Brower rented the premises for the term of one year from the first of May following, to James W. Scott, at a yearly rent of $300, payable monthly in advance. Scott immediately thereafter, and without the permission of Brower, re-let the premises to Elias Braman, the relator, himself never entering into possession. Scott paid one month's rent, Braman taking possession, and since holding it.

On the 30th of May, 1860, Brower sold all his right, title and interest to Clark B. Wheeler, for $275, Wheeler taking, subject to a mortgage held by Braman, who shows that the interest had not been paid on the first mortgage, for $2,800, when these proceedings were commenced.

On the first of June a month's rent fell due, and was demanded by Wheeler of both Scott and Braman, who each refused to pay it. Wheeler commenced proceedings to dispossess both the tenant and sub-tenant. Braman raised the question whether or not Wheeler was landlord, and put in issue other questions of fact, Scott not appearing. That controversy resulted in a judgment for Wheeler, on a trial by the city judge without a jury, and a warrant was issued for the removal of the tenant and sub-tenant. While that warrant was still in the hands of the constable, Braman, the relator, obtained of the county judge an injunction against both Wheeler and Scott, and the judgment was brought up for review on certiorari to the city judge. The respondents contended that the judge of the court below was not a proper party on the certiorari, he having no interest in it whatever. The relator should have assigned errors, which he had not done, and he could not have the benefit of exceptions not taken on the trial. On appeal from the judgment only, the court would not review the case with a view to determine whether the verdict was against the weight of evidence. Other points were taken, but the above were the principal ones.