The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-03-02


it may determine whether imprisonment should be
ordered as punishment, and what term would be a
reasonable period in any particular case. Inc re-
ported cases show that courts have regarded it as
free from doubt that the nature of the disobedlence,
whether il wiul or otherwise, was one OF the
matters to be regarded in determining wnetner
any and what punishment should be lnnicteu De
yond the imposition of fine sufficient 10 indemnify
an injured party for his loss and to satisfy his expen
SEES In Hawley vs.. Bennett, Paige, lGi the Chan-
ecor said that far as the rights OF party have
been affected by the breach OF an injunction, u IS no
defence to the person who has been guilty OF viola
ting the same that he did it under the advice OF
counsel, although, if he has acted in good
faith it may be sufficient to protect him from punish
ment as for criminal contempt In Rogers vs..
Paterson, i'd 456, the Chancellor restated the prin-
cipe thus: /" And the advice OF counsel cannot pro-
tect party in disobeyng an order of the court, so
as to prevent the adverse party, whose remedy is inn
paired impeded by such disObedience, from taking
the necessary steps to compel compliance with the
order although the fact that the party has acted in
good faith and under the advice Of his counsel, may
be sufficient to prevent the imposition Of fine be-
yond the actual amount of the injury sustained by
the adverse party and the necessary expenses of the
proceedings" In Sullivan vs. Judah, 4, i'd AL he
said, " In this case it is evident the complainant
has sustained no injury by the proceedings OF the de-
PENDANTS although they have proceeded in direct OPP
position to the injunction. And the excuse offered
by them is sufficient to prevent the imposition Of any
considerable fine as punishment for contemnlng the
process of the court In Lansing Easton,7 Paige,
367, he remarked that The fact that the defendants
acted under the erroneous advice OF counsel to whom
they applied for information how they could eude
the justice of this court and at the same time avoid
punishment for a breach of the injunction, cannot
protect them from fine sufficient to compensate the
adverse parties for the injuries they have sustained by
the wrongful acts complained of, though it may fur
nish ground to justify the court in refusing to in
hict further punishment upon the offenders for
violation Of its order" In the Albany City Bank
Schermerhorn, Paige, 379 in which the Chancellor,
on appeal reversed Vice Chancellors order adjudg
n
order OF conviction should direct TO whom the fine
is to be paid, what is to be done with such fine
when paid &c. so that the order and the process Of
commitment founded thereon may show the nature
Of the conviction and what the defendant is to do to
enttle himself to discharge from imprisonment"
In the People rel Backus vs. Spaldng, 10 Paige,
2S4, the report Of the shows that Spading had
been convicted, by Vice Chancellor, of a wilful
breach Of an injunction issued upon creditors bill
filed against him. After he had been committed, he
was discharged by Supreme Court commission in
proceedings under hd6eas corpus. The Vice Chan
cellor made an order for re-commitment, on the
ground that the commissioner had jurisdiction in
that case to order his discharge. From the order
re-committing him, Spalding appealed to the Chan
celor who affirmed the order. An appeal was taken
to the Court for the Correction Of Errors That court
affirmed the Judgment of the Chancellor Chief
Justice Nelson, in delivering the opinion of the
court, remarked that the act for which the appel
liant had thus been adjudged guilty is criminal
offence under the revised statutes, and before
at the common law, subjecting the offender to in
dictment, and, on conviction, to fine and imprison
ment." e r. s., 692, IA, id. 697; 81. Comm,
l29) In cases confessedly criminal and in
dictable, the penalties for which would or
dinarily go for the benefit of the people, the
courts are authorized to impose fine with view to
the indemnity Of the party aggrieved his acceptance
of it being declared bar to any private action for
the injury. The fine, however, is no less penalty
for criminal act than if inflicted for the benefit Of
the people: but the imposition of it in the way pre-
scribed accomplishes the double purpose Of punish
ment for the misconduct on the one hand and in
demnity to the aggrieved party on the other" q
Hill, 3Ol) In that case the court below adjudged
that an actual loss had been 0ccasiOned by the DISC
bediencc and although the reports of the show
that he was fined for the contempt to the amount of
$1,000 and the costs and expenses in relation to the
contempt to the amount Of s196 81, it does not
appear how much was due on the Judgment on which
the creditors bill was filed. The order of conviction
directed the costs to be paid to the solicitor of the
reator and the So 900 to be paid to the clerk Of the
court. a How, S. c. R.. Gu. So 2l.) In that
case Spalding was asjudged, on the 2lst of
March, ls42, to have wilfuly violated the injnnc-
ton On the eth Of May, 1912, he was arrested on
an alias mttemus, and continued under arrest until
the 18th OF September following, when he was dis
charged by the Supreme Court commission, on the
ground that discharge in bankruptcy, granted on
costs, and expenses, which he had been ordered to
pay. In the Court for the Correction of Errors it
commended on behalf of Spadng, that the proceed
ngs under which the fine had been imposed, be-
forcement OF civil remedies, should, though in form
criminal, be regarded simply as another remedy for
collecting the debt claimed in the chancery suit and
upon which they had been founded-that the fine
was in fact, imposed for the purpose of being APP
piled to the eXtinguishment of the debt, whenever
in the progress of the suit, it should have been
tabshed, but that it was incidental to the debt,
and dependant upon it, and that discharge OF
the one must necessarily discharge the other.
e HILL 302, 303.) 1t was in answer to this
argument that the remarks Of Chief JUS
tice Nelson, above quoted, were made. The
question was not presented, nor was any
suggestion made by the court, in relation
to the point, whether in any case imprisonment
might properly be ordered as punishment in adj
dition to the imposition of fine nor whether fine
could be imposed merely as punishment in case
in which one was imposed to indemnify against
actual loss. Section Y is express that fine may
be imposed, not exceeding $3.50 over and above the
costs and expenses of the proceedings even in those
where no actual loss was occasoned by the dis
obedience. Such fine if imposed, must necessarily
be imposed merely as q punishment, and not as an
indemnity and when paid goes to the benefit Of the
public, and not to the complaining party Macy
Jordan, Hill So was an appeal to the court OF last
resort from an adjudication OF the Chancellor, that
Macy had wifuly violated an injunction issued on
creditors bill filed against him, and fining him to
the amount of the respondents debt and the costs Of
the proceedings. The Injunction was served on the
23d of November, 1888. On the 5th of December
following, Macy violated it by making an assign
ment Of his property. On the 9th Of August, 1912,
October ls43, attachment was applied for, over
year after obtaining his discharge in bankruptcy to
arrest for the violation Of the injunction. In March,
1874 he was adjudged guilty of the contempt al
legged to have been committed in December, 1888,
some five years prior to the issuing Of the attach
ment. Justice Jewett, in the opinion delivered by
him. remarks that the cause for which the fine
imposed was the criminal contempt which the APP
pellant was adudged to have committed in violating
the Injunction e. r. s. 27s Sl0) The punish
ment for such an offence is by fine or Imprisonment
or both according to the aggravation OF the case;
and where party has suffered by the misconduct
which constitutes the offence, the fine is to be
paid to such party e r. S. 53s, $40 to 22.) 1t may
be true that if the debt has been paid subsequently
to the violation Of the injunction, no punishment or
only nominal fine, could have been imposed 4 =
"The proceeding after the attachment issued was
for a criminal offence, and although the respon-
dent might incidentally derive benefit from
the conviction, still the proceeding was not