#### F. A. WEAVER *vs.*J. M. HAMILTON.

A Justice of the Peace who grants an appeál to Court, from a judgment which he has rendered, and takes the required security, but afterwards defaces the appeal bond and fails to return the papers to'the Court to which the appeal is taken, although guilty of a misdemeanor, is not liable to be punished for a contempt of the Court.

Costs cannot be adjudged on a rule for a contempt, Unless there be a judgment finding the defendant guilty of such contempt.

Rule served upon the defendant to show cause why he' *344should not be held in Contempt of the Court: Heard before his Honor, Judge PERSON, at the Pali Term, 1854, of Rutherford Superior Court.

The rule was granted on the following affidavit:

“ F. A. Weaver maketh oath, that on 8th day of February, 1854, or thereabouts, he recovered a judgment before J. M., Hamilton, one of the Justices of the Peace for the said county, against Robert Dobson for the sum of $15, or thereabouts : that thereafter, on or about the 18th of February, 1854, the defendant, within ten days after the rendition of said judgment, being dissatisfied with the said-judgment, prayed an appeal to the Superior Court of Law, of said county of Rutherford, which was allowed, and gave as his sureties for said appeal, A. J. Hamilton, Thomas Green and Wm. H. Foster; who became bound as such in due form of law; that said judgment and appeal were then left in the possession of the said J. M. Hamilton, justice as aforesaid, whose duty it was to return the same at this term of this Honorable Court, to which the same is returnable. This affiant further swears, that said appeal has not been returned by the said J. M. Hamilton, but he retains the same in his hands, and refuses, as affiant is informed and believes, to return the same into this Court and have it entered of record: That affiant is informed and believes that the said J. M. Hamilton, justice, &c., has permitted and allowed the names of the said sureties to the appeal, to be stricken out and erased, after they had became bound as sureties, and has permitted, and allowed the said judgment, to be defaced and entries to be made thereon, contrary to law, and against the consent of affiant.”

Plaintiff filed another affidavit affirming the facts set forth in the above.

The rule was granted byDioK, Judge, at Spring Term, 1854, and continued over to the Fall Term, 1854, of the same Court, when the defendant, having been served with notice, appeared and made the following return:

“ This respondent answering thereto, saith that it is not true, as alleged in the affidavit of. the said Weaver, that he reeov-*345ered a judgment against Dobson, but on the 25th of February last, this respondent, as a Justice of the Peace in and for this county, rendered a judgment in favor of John Dill, to the use of the said Weaver, against Robert Dobson for $9 50 principal, with interest from 8th of January, 1852, and 10 cents costs. From this judgment said Dobson prayed an appeal to this Court (which was allowed by this respondent) and gave for security A. J. Hamilton, Thomas Green and W. H. Foster. This being done, it was the purpose of respondent to return the said appeal, but being satisfied, from the representations of said securities, that they had signed the same under a misapprehension, they supposing that they were only bound for said Dobson’s appearance two week’s thereafter, respondent, in accordance with his convictions of duty, struck out the said appeal. In doing so, respondent thought he was acting within the limits of his judicial power, and intended only to measure out justice to the parties ; he intended no contempt of this, or any other court: he acted from a sense of duty only, and from a desire to do justice to all; and he respectfully submits whether the rule made upon him, at the last term, is not only a reflection upon his judicial integrity, but in violation of all precedent, and a dangerous innovation upon the rights of an independent tribunal, bound under as high obligations to discharge its duties as this Honorable Court? He admits the superior supervisory power of this Court, but the mode and manner of exercising this power, he humbly concludes, has been misconceived in this case. As a Justice of the Peace he is advised and insists that he has as ample power to amend, alter or modify the judgments and entries made by him, as this Honorable Court, and if he errs, as he may have done in this case, from his anxiety to mete out justice to all concerned, by writs well defined, and whose offices are well understood, his acts may be brought up and revised and corrected here. As an illustration: parties litigating here, have a right.of appeal in many instances, to the Supreme Court: suppose a judgment rendered by your Honor appealed from and an appeal bond executed, and afterwards cancelled, because of a *346misapprehension of the sureties as to the nature of the liability incurred by them, or even from corrupt motives, to favor one of the parties, would this Court be answerable to this higher tribunal for a contempt? Nespondent ventures the opinion that such a course would not be thought of, much less resorted to. The usual remedy by *certiorari*would be adequate for purposes of justice; it is the course marked out by law, practiced by every one and approved by the wisdom of ages, as the best mode of preserving the independence and integrity of separate tribunals. So in this case: If respondent has erred, the writ of *recorda/ri*might have been sued, which would have sufficed to bring this error, legitimately, before this Court for revision : and if his error proceeded from corruption, he could be reached bjr indictment or impeachment, and not by a summary proceeding for contempt, to be inflicted at the discretion of one man, without the benefit of a trial of his peers, or the constitutional, right of confronting his witnesses; but upon *ex parte*affidavits — the punishment restricted by no law, but resting solely on the arbitrary whim of the Court: Under these considerations respondent submits, that this Court has overleaped its powers, and usurped a jurisdiction, dangerous in its. tendency, and violative of respondent’s rights.

“Again : by the act of 1846, the power of this Court, to attach for contempt is defined and restricted : Tour respondent has not been brought within its provisions by a single allegation made in plaintiff’s affidavit or rule: on the contrary, the facts upon which this rule was granted, show, as he is advised, that he is not amenable to this Court in this proceeding. Wherefore,.he prays to be hence dismissed, with costs, for this illegal proceeding against him.

“ Jomar Baxter, Attorney.”

“ Sworn to by the defendant.”

Upon argument of the case the Court adjudged that “the defendant pay the costs in this case, to be taxed by the clerk, and that he be discharged.”

. From which judgment the defendant appealed.

*347
      *Avery,*for plaintiff.

*Baxter,*for defendant.

Nash, O. J.

The doctrine of contempt is regulated in this' State by statute. Before the year 1846, they were undefined, and left very much to the discretion of the court' presiding. Under such circumstances, it is not at all to be wondered at, that many acts were considered as contempt, and punished as such, which, in the eyes of the public, were looked upon as harmless in themselves, but as exhibiting an arbitrary spirit in judicial officers. The necessity of this power, however, is felt and acknowledged by every one, who values the independence of the judiciary, or its wholesome action. If it were not in the power of the court to punish individuals, who, by noise or otherwise, interrupt its proceedings, its business would be impeded — the majesty of the law defied, and the court ultimately brought into contempt. Needful, then, as the power to punish for contempt is, to every court, mixed up as it is in its very being, it is proper and right that the courts should have, as far as possible, some sure guide to regulate their course. No well-minded judge desires to be burthened with discretionary powers: at least, no further than is necessary to the proper transaction of the business before him. In the year 1846, the Legislature of the State turned its attention to the subject, and defined the limit within which the power to punish for contempts should be exercised by courts of justice. In the 1st sec. of the 62 ch. it is enacted that “ The power of the courts to inflict summary punishment for contempt of court, shall not, hereafter, extend to any causes except the misbehavior of any person or persons in the presence of the said court, or so near thereto, as to obstruct the administration of justice, the misbehavior of any of the officers of said court, in their official transactions, and the disobedience, or resistance by any officer of the said court, party, or juror, witness, or any other person or persons, to any lawful writ, process, order, decree or command of the said court.”' In the case before us, a judgment had been obtained by the plaintiff *348Weaver, before the defendant, who is a Justice of the Peace of Rutherford county, from which the defendant in the judgment prayed an appeal to the next term of the Superior Court, and entered into bond with sureties according to law. The appeal was-not returned to Court, and a notice was regularly served on the defendant, to show cause why he did not return it, and also to show cause why he should not be held in contempt for refusing and neglecting to make return as required by law. In his return, the defendant states that a judgment tp the use of Weaver was obtained before him against one Dobson, who being dissatisfied, prayed an appeal to the Superior Court of the county and gave three sureties, who, together with Dobson, executed an appeal bond. The return then states that the defendant being satisfied by the representation of the sureties, that they executed the said bond under a mistake, erased their names from it, fully believing he had a right to do so; and believing, that the defendant Dobson had not complied with the law, in giving bond and security thereto for his appeal, he considered the appeal incomplete, and that he had no riirht to return it to Court.

It will be readily perceived that the cause or foundation for the charge against the defendant, here, for contempt, does not come within any of the classes enumerated in the Act of 1846. The act complained of was not committed in the presence of the Court, or near thereto: the’ defendant is not an officer of the Court, nor has he refused obedience to any lawful writ, process, order, decree, or command of the Superior Court of Rutherford, where he was held in contempt. It is true, that the magistrate strangely mistook his duty, in striking from the appeal bond the names of the sureties. The bond was an official one, in his custody, as an officer of the law, and he had, after it was duly executed, no more power to alter it, than he had to alter or erase the judgment, or to erase any private bond which had been entrusted to his custody by the owner of it. The present plaintiff had acquired, by its execution, an interest in it, of which the defendant could not, by his officious and unauthorized alteration of it, deprive him. After the erasure *349by the defendant, it still remained an appeal bond, and the papers ought to have been returned by him to the Court: the violence, perpetrated by him upon the official papers in his hands, was a misdemeanor, and may, under circumstances, be punished by indictment, but not as a contempt. The case was likened at the bar, to that of a sheriff, who, having collected money under an execution, fails, or refuses to pay it into the office of the court: in such a case the officer has violated his precept, which commands him to return it to the clerk of the court, one of the classes enumerated in the Act of 1846.

On behalf of the plaintiff, and in support of the allegation of the existence of the contempt, it is insisted that the plaintiff could not support an application for a *recordari,*for an appeal had been prayed for and granted. So far as enforcing the claim against Dobson and his sureties, was in question, the proper course was pursued by serving a notice upon the defendant to return the papers. His Honor considered the conduct of the defendant to amount to a contempt of court, and that the costs of the proceeding were a sufficient punishment. As there was no contempt of court, the defendant, under the general law regulating costs, was entitled to his costs.

Pee CueiaM.' Judgment reversed and" judgment for the defendant for costs.