SPECIAL COURT OP APPEALS.

#### Taliaferro v. Horde’s Administrators.

December, 1822.

Contempt — Attachment—When It Will Lie.† — An attachment for contempt in disobedience of a decree of the Chancery Court, will only lie for disobedience of what is decreed, and not for what may be decreed.

Appeal from the chancery court of Richmond.

The case was this:

Horde was the creditor of W. T. Alexander by bond, and brought a suit at law, and obtained a judgment. An execution was issued against the body of the said Alexander, and he was discharged, upon taking the oath of insolvency. The plaintiff Horde, then filed a bill in chancery against the said Alexander and Lucy his wife, and John Taliaferro, to set aside two deeds executed by the said Alexander, to the said Taliaferro, as trustee for the benefit of the said Lucy, and for other purposes.* These *deeds are impeached as having been made “voluntarily, and with intent to defraud your orator and his other creditors,” (meaning the creditors of the said Alexander.) The defendants answered, setting forth the facts which are stated more at large in the last case. The chancellor, without deciding upon the validity of the deeds in the bill and answer mentioned, the deed of the 16th of December, 1804, not having been recorded within the time prescribed by law, is void as to the creditors of the said William T. Alexander; and therefore decreed, that unless the defendant should pay the plaintiff’s demand, within sixty days after having been served with a copy of the decree, with interest, the sheriff or his deputy should sell at public auction, so much of the personal estate conveyed by the deed of 1804, as shall be sufficient to pay the said debt, interest and costs, after advertising, &c. And that the said J. Taliaferro, and Lucy Alexander, or either of them, being in possession of the said estate, do deliver the same or so much thereof, as may_ be required for that purpose, to the said sheriff or either of his deputies, &c.

From this decree, the defendants appealed; and the court of appeals affirmed the decree.

A bill of review was presented by John Taliaferro and Richard Foote and Lucy his wife, (formerly Lucy Alexander;) but the chancellor, deeming the matter stated in the bill to be insufficient, rejected the motion.*

Copies of the above mentioned decree, were served on John Taliaferro, Richard Foote and Lucy his- wife, (formerly Lucy Alexander.)

John Taliaferro replied, that he had no funds in his hands, belonging to the defendant, (meaning the said Alexander.)

Lucy Foote replied, that the negroes now in her possession, had been settled on her, at the time of separating from her former husband; and that consequently she would not give them up, to pay his debts.

*Copies of the said decree were a second time served on John Taliaferro and Richard Foote, and Lucy his wife, with a demand that they would surrender so much of the property referred to in the said decree, as would be sufficient to satisfy the plaintiff’s demand. But, Taliaferro refused to comply, alleging that no part of the property spoken of in the decree, is, or ever was in his possession; nor has he_ any control over it, such as to enable him to deliver up any part of it in satisfaction of said decree. Richard Foote and his wife, refused to surrender any of the property.

Horde _ being dead, his administrator gave notice to Taliaferro and Foote and his wife, that he should move the court of chancery to award an attachment against them for failing to comply with the decrees and order of the court, by not delivering the property mentioned in the said decree.

Taliaferro filed an affidavit, in which he stated, that no part of the property conveyed to' him in trust, by Alexander, by the deed of 1804, was in his possession at the time the marshal demanded of him as much as would satisfy the decree above mentioned; and further, that no part of it ever has been in his possession, as trustee.

The court of chancery awarded the attachment.

On motion of Taliaferro, the court suspended the operation of the attachment, on payment of the principal, interest and costs now due, on the decree, to enforce the performance of which the attachment was awarded.

At a subsequent day, Taliaferro filed an *95affidavit, in which he declared, that none of the negroes or other property conveyed to him, in trust, by Alexander, by the deed of the 16th day of December, 1804, were, at that time, or at any time since the execution of the said deed, in his possession, or in any manner under his direction; that the negroes referred to as being in his possession, are certain slaves conveyed to him in trust, by the deed of the 10th of October, 1802; and that he had no property in his possession, *nor even had had, liable to the decree of the chancellor, pronounced in this cause.

On the ground of this affidavit, Taliaferro moved the court to set aside the order for the attachment, but the court being of opinion, “that although the negroes, chariot and horses have not, at any time, as stated in the affidavit, been in possession or under the control of the said John Taliaferro, yet the rent due by him of six hundred pounds annually, to the female defendant, during her life, is liable in like manner with the other estate comprised in the said deed,” rejected the motion.

From this order, an appeal was allowed by a judge of the court of appeals.

Wickham, for the appellant,

contended, that as the decree on which the attachment issued, related only to the personal estate of Alexander, in the possession of J. Taliaferro, and he having declared upon oath that such estate was not, nor ever had been, in his possession, the attachment ought to have been discharged. But the chancellor, admitting that the affidavit is satisfactory as to the negroes, and chariot and horses, supposes that the decree of the court embraces the rents due from Taliaferro to Mrs. Alexander; and, on that ground only, sustains the attachment. But this was clearly not the case. Not a word Is mentioned about rents in the decree. It is confined entirely to the personal estate of Alexander, and to such only as should be in the possession of John Taliaferro and Lucy Alexander. These words cannot, by any fair construction, be made to comprehend a debt due to Lucy Alexander. The decree manifestly relates to the slaves and other personal estate, which had been conveyed by the deed of 1804, and is of such a tangible nature that possession might be had of it. The attachment was therefore improvidently awarded, and the order of the chancellor ought to be reversed.

*Stanard, for the appellee.

The first question to be considered is, whether the decree embraced the rents, or w'as confined to the personal property of Alexander in the hands of Taliaferro? By the decree, the deed of 1804 was set aside in toto; and consequently, no species of property could be protected by it, against the claims of creditors. The rents were as proper a subject for a decree, as any other portion of the personal estate. The annuity was in the hands of Taliaferro, at the time of the decree being rendered. The words of the decree were sufficiently comprehensive to embrace the rents. Personal estate includes choses in action, as well as things in possession.

But the affidavit of Taliaferro was too loose and equivocating, to discharge him from the attachment for contempt. It does not deny any collusion between himself and others, to produce the incapacity to perform the decree. It does not aver that he had no control over the property, but merely says that he had no possession of it as trustee. Neither the first nor second affidavit are satisfactory. They are not such, as if false, would subject Taliaferro to a prosecution for perjury. It might be true that he had not possession of the property, and yet he might have employed others to hold it for him. He might not have had possession, and yet he may have had a perfect control. He may have had possession, and yet, not possession as a trustee.

'In addition to this, the affidavits do not appear, upon their face, to have been taken in any judicial proceeding. They are, to all appearance, mere voluntary oaths, taken in pays. Such affidavits are not sufficient to support a prosecution for perjury, even if they are untrue.

Wickham replied,

that the decree was only against the person who was in possession of the personal property. It is of no importance whether another decree ought to have been made; but the only question is, what was the actual decree. The property was still within the reach of *the court. The return of the officer proves, that "Lucy Foote, one of the defendants, acknowledged that she was in possession of some of the negroes, but would not deliver them up. She, therefore, was the proper object of the process for contempt, and not Taliaferro. There is clearly no order about the rent. The affidavit was full enough. The expression that the property was not in his possession, nor in any manner under his direction, is equivalent to saying that it was not under his control. As to the formal objection, that the caption of the affidavits do not shew that they were taken in a judicial proceeding, the whole tenor of the affidavits, the accompanying circumstances, and the use that was actually made of them, are sufficient to prove that they were intended only for that very case in which they were used. The objection comes too late in the appellate court; but should have been suggested in the court of chancery.

†

See monographic *note*on “Contempts” appended to Wells v. Com., 21 Gratt. 500.

*

These deeds are more fully detailed in the last case. — Note in Original Edition.

*

From this decree an appeal was taken, and the court of appeals affirmed it. — Note in Original Edition.

JUDGE CABELL,

December 6th. — delivered the opinion of the court:

The chancellor not having entered up any decree against the appellant, directing him to pay to the appellee, any portion of the rent of 6001., which, by the deed of the 16th of December, 1804, he was annually to pay to Mrs. Alexander, during her life; this court will not anticipate the question of his liability to the ■ appellee therefor. The only questions deemed necessary to be decided at present, are those relating to the attachment. The process for contempt lies for disobedience of what is decreed, not for what may be decreed. In this case, it is manifest that the appellant has not refused obedience to any thing that was required of him by the decree. The order *96awarding the attachment, as also that refusing to set it aside, are therefore reversed with costs, and the attachment set aside, and the cause is remanded, &c.