Cartwright's Case

| Mass. | Nov 15, 1873

Gray, C. J.

The summary power to commit and punish for contempts tending to obstruct or degrade the administration of justice is inherent in Courts of Chancery and other Superior Courts, as essential to the execution of their powers and to the maintenance of their authority, and is part of the law of the land, within the meaning of Magna Charta and of the twelfth article of our Declaration of Rights. 4 Bl. Com. 284-288. Acta Canc. 209, 264, 321, 373, 642, 753, 755. The King v. Almon, Wilmot, 243, 254. Clarke’s Praxis, tit. 62. Mass. Col. Laws, (ed. 1672,) 36; Anc. Chart. 90. Thwing v. Dennie, Quincy, 338. 6 Dane Ab. 528. United States v. Hudson, 7 Cranch, 32" court="SCOTUS" date_filed="1812-03-14" href="https://app.midpage.ai/document/the-united-states-v-hudson-and-goodwin-84968?utm_source=webapp" opinion_id="84968">7 Cranch, 32, 34. There is no class of cases in which the exercise of this power is more familiar or more necessary than in the case of attorneys and solicitors, clerks, sheriffs and other officers of courts. 2 Hawk. c. 22, §§ 4, 10, 11, 30. United States v. Mann, 2 Brock. 9" court="None" date_filed="1822-05-15" href="https://app.midpage.ai/document/united-states-v-mann-8639068?utm_source=webapp" opinion_id="8639068">2 Brock. 9. In re Pitman, 1 Curtis, 186. Yates v. Lansing, 9 Johns. 395" court="None" date_filed="1811-04-15" href="https://app.midpage.ai/document/yates-v-lansing-6145165?utm_source=webapp" opinion_id="6145165">9 Johns. 395, affirming S. C. 5 Johns. 282" court="N.Y. Sup. Ct." date_filed="1810-02-15" href="https://app.midpage.ai/document/yates-v-lansing-5472513?utm_source=webapp" opinion_id="5472513">5 Johns. 282. Chiles v. Harrison, 1 Litt. 150" court="Ky. Ct. App." date_filed="1822-06-04" href="https://app.midpage.ai/document/chiles-v-harrison-7382702?utm_source=webapp" opinion_id="7382702">1 Litt. 150. The appellant, having been appointed by this court, sitting in equity, the receiver of an insolvent insurance company, was an officer and representative of the court, and his custody of the funds thereby committed to his charge was the custody of the court. Davis v. Gray, 16 Wall. 203" court="SCOTUS" date_filed="1873-04-15" href="https://app.midpage.ai/document/davis-v-gray-88673?utm_source=webapp" opinion_id="88673">16 Wall. 203. Hills v. Parker, 111 Mass. 508" court="Mass." date_filed="1873-03-15" href="https://app.midpage.ai/document/hills-v-parker-6417190?utm_source=webapp" opinion_id="6417190">111 Mass. 508.

An application for an attachment for contempt is to be made and filed in the original cause; after the attachment has issued, the proceedings are distinct and are criminal in their nature. Folger v. Hoogland, 5 Johns. 235" court="N.Y. Sup. Ct." date_filed="1809-11-15" href="https://app.midpage.ai/document/dubois-v-philips-5472499?utm_source=webapp" opinion_id="5472499">5 Johns. 235. Ex parte Kearney, 7 Wheat. 38" court="SCOTUS" date_filed="1822-02-15" href="https://app.midpage.ai/document/ex-parte-kearney-85357?utm_source=webapp" opinion_id="85357">7 Wheat. 38. Durant v. Supervisors, 1 Woolw., 377" court="None" date_filed="1869-05-15" href="https://app.midpage.ai/document/durant-v-washington-county-9301632?utm_source=webapp" opinion_id="9301632">1 Woolworth, 377. Winslow v. Nayson, 113 Mass. 411" court="Mass." date_filed="1873-11-15" href="https://app.midpage.ai/document/winslow-v-nayson-6417443?utm_source=webapp" opinion_id="6417443">113 Mass. 411. McDermott v. Clary, 107 Mass. 501" court="Mass." date_filed="1871-09-15" href="https://app.midpage.ai/document/mcdermott-v-clary-6416535?utm_source=webapp" opinion_id="6416535">107 Mass. 501. But the jurisdiction and power of the court do not depend upon the question whether the offence might or might not be punished by indictment. Rex v. Ossulston, 2 Stra. 1107; S. C. nom. The King v. Pierson, Andr. 310. Spalding v. People, 7 Hill, 301; S. C. 10 Paige Ch., 284" court="None" date_filed="1843-05-02" href="https://app.midpage.ai/document/people-ex-rel-backus-v-spalding-5548720?utm_source=webapp" opinion_id="5548720">10 Paige, 284; 4 How. 21" court="SCOTUS" date_filed="1845-12-30" href="https://app.midpage.ai/document/lyman-a-spalding-in-error-v-the-people-of-the-state-of-new-york-ex-rel-frederic-f-backus-86354?utm_source=webapp" opinion_id="86354">4 How. 21. State v. Woodfin, 5 Ired. 199. State v. Williams, 2 Speers, 26. “ As regards the question whether a contempt has or has not been committed, it does not depend upon the intention of the party, but upon the act he has done.” By Taney, C. J., in Wartman v. Wartman, Taney, 362, 370. In a court of chancery, at least, his oath is not conclusive in his favor, but may be contradicted by other evidence. Bac. Ab. Attachment, B. 4 Bl. Com. 288. The King v. Vaughan, 2 Doug. 516. Emery v. Bowen, 5 L. J. (N. S. Ch. 349.

But in the present case his own testimony fails to clear him. It appears by his examination upon oath that at the time of his appointment as receiver he was indebted to the corporation in the sum of §1650.00, and that he afterwards took from the assets of the corporation in the hands of the receivers, and applied and spent for his own use, without any order or authority of the court, the sum of $10,573.44; that nearly $9000 of this sum was so taken by him within two or three months of his appointment, that no entry of the greater part thereof was made on the books of the receivers until after the Attorney General had filed an application to remove him from office for gross negligence and malfeasance in his official duties, and that no part of these two sums, amounting with interest at six per cent, to $13,565.97, had ever been replaced. The appellant’s statement that he had no intention to do wrong is irreconcilable with the rest of his testimony, and with his admission that he also appropriated, without the knowledge of his co-receivers, $25,000 in bonds of the United States, belonging to the corporation, and did not return them until after that misappropriation had been discovered by the Attorney General and a demand had been made upon him for them.

The taking and spending by this receiver for his own use, whether with or without the concurrence or advice of the other receivers, of more than $10,000 of the funds in his possession as an officer and representative of the court, was a gross breach of trust, tending to bring reproach, disgrace and distrust upon the administration of justice, and was a contempt of the authority of the court, and punishable, according to the law of the land and the established practice of all courts of similar jurisdiction, by fine or imprisonment at the discretion of the court. The object of an attachment and commitment for a gross contempt of this nature being not merely to compel restoration of the money illegally taken, but to punish the offender, the discretion of the court cannot be controlled by the fact of his not having the present means of repaying what he has abstracted.

The appellant had full and sufficient notice of the nature of the contempt with which he was charged, by the terms of the order to show cause why an attachment should not issue against him, and by the affidavit of one of the receivers upon which that order was founded. He was fully heard in person and by counsel in his defence. And his offence is clearly set forth in the decree adjudging him guilty of contempt and in the warrant of commitment issued thereon.

It is unnecessary to consider how far that decree is the subject of appeal; because, for the reasons above stated, we are of opinion that there is no error of law in the proceedings, and that upon the facts of the case the discretion of the court was wisely and justly exercised by sentencing him to imprisonment for six months unless sooner discharged by further order of the court.

Decree affirmed.