The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1894-07-17
OPINION OF THE COURT BY FREAR, j

OPINION OF THE COURT BY FREAR, ].
The substantial facts of this case
are, that the petitioner Aldrlch was
oai,a;oo-a bankrupt aud Henry
Davis was his eleC anu quallned
Assignee; that the trust Wa not set
tied and the Assignee on learb.ng
that the bankrupt was intending to
leave this country, applied to a
Judge of the Circuit Court First
Circuit, for a writ of ne ereat stating
that the estate of the bankrupt WIS
unsettled and that his presence was
necessary to enable the assignee to
settle the same aud that the absence
of the bankrupt would prevent the
Assignee from obtaining possession
of certain property which the bank
rupt was entitled to in the State of
California. The Circuit Judge
issued the writ Of ne Great which en-
joined the bankrupt under pain of
being adjudged guilty of contempt
from leaving or attempting to leave
this country without the leave of
court and ordered him to show cause
why the writ should not be made
absolute.
The writ was issued on the Both
day Of May last. The respondent
made answer on the 5th of June.
On the return day, June II, the
Assignee moved that the bankrupt
be attached for violation of the 10
junction issued, alleging an attempt
to leave this country on the 9Th of
June by aud on the brig
"L'Avvenier." The Court heard the
proofs and sdjudged the bankrupt
guilty of contempt and ordered him
committed to Oahu Prison for
thirty days ''unless he shall sooner
be discharged by this Court" The
warrant to carry the order into eff, ct
was issued the 18th Of June, and ae-
.ivered to the Marshal for execution.
Thereafter on the same day Writ
of certiOra,i was directed 10 the Cir
cult Judge, in response to which the
record in the contempt and ne Great
proceedings were certified to this
Court.
The object in bringing the record
here is to determine the validity of
the order adjudgmg the bankrupt
guilty of contempt; the argument
for the bankrupt oeIug that the III
junction of ne Great was void because
the Circuit Judge had no jurisdiction
10 issue it; and that the breach Of a
void injunction is not contempt.
We are of the opinion that the
order of ne Great was not void. The
Circuit Judge sat as a Court of
record OF general jurisdiction and
I, he statute flaws of 1892, Oh. LVII,
Sec 81, Subdiv. 81 expressly empow-
cred him "To issue writs of >
mdndamus ne Great regnO," without de-
finipg the cases to which such writs
are applicable. Whether this is a
proper case for the issuance of the
writ is a question which we cannot
now consider. The statute laws of
1876, CHI. XXXlX, Secs. u and 33)
authorizes US to set aside upon
certiOrari only such proceedings as
are absolutely void. In this case the
ne Great proceedings were at most
voidable only. Even if the petition
showed upon its face that the facts
were not such as to justify the issu-
auce # the writ, the proper course
for the bankrupt was, not to disre
gard it, but to apply to the Judge
who issued il for an order discharg-
ing it. We cannot upon certtOTdrt
brought to determine the validity
of the contempt proceedings consider
the ne Great proceedings upon their
merits.
In The People v. Spalding, 2
Paige, 329, Chancellor Walworth
SAID: "Whlle the Injunction remain
ed in force, it was the duty of the
vice chancellor to punish every
breacn thereof; and in no case can a
defendant be permitted to disobey
an injunction regularly issued, what
ever may be the fiual decision Of the
Court upon the merits of the cause.
If there is not sufficient equity on
the face of the bill to support the in
Junction, the proper course for the
defendant is to apply at once for
dissolution, aud he may
again move the Court upon the COM
il g in of his answer"
Again, "A defendant against whom
there is prima faeie evidences IF being
guilty of a breach of an Injunction
cannot be heard upon motion to
discharge ne Great against him in
the same cause until he has purged
himself of the contempt"
Beach, Mod. Eq. Prac, Sec 624.
Ii therefore the bat krupt WAS not
entitled to be heard by the Judge If
original jurisdiction upon motion
20 discharge the writ t ne Great until
be had purged himself of tue con-
tempt, how can he expect this Court
to do practically the SAM thing?
1t is unnecessary for u to consider
tue other arguments OF conus-l.
The order of certiOrGri is dissolved,
costs to be paid 10y be petitioner.
G w. Ashford for petitioner; A S.
Hartwell contra.
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