In re Vanderbilt

4 Johns. Ch. 57 | New York Court of Chancery | 1819

The Chancellob.

In the case of ordinary contempts, where an attachment is used to enforce appearance, or an answer, the body of the process is still general, as in this case, but the suit and the cause of the attachment are endorsed on the writ, or appear in a label annexed, so that the party may at once comply, without application to the Court. (Hinde's Pr. 102, 103. 1 Fowler's Ex. Pr. 12S.) But for extraordinary contempts, or wilful and direct violations of the process and powers of the court, where it is necessary that the party should be brought forthwith before the court, and is not to be bailed, there is no need or usé of a label designating the case. The sheriff is not required to take bail upon attachment from Chancery. The case is not within the statute. It is settled at law (Str. 479. Anon. 2 Saund. 59. b. note 3.) that the sheriff cannot take bail on an attachment, though a judge at chambers may. In Chancery there is still less necessity for bail, as the court is always open, and the party may be brought in, at any time. The sheriff, on an attachment from Chancery, ought to bring the party into court without delay, and so it was understood in the case of Studd v. Acton, (1 H. Black. Rep. 468.) where it was decided by the C. B., after argument upon demurrer, that the sheriff was not required to take bail under process of attachment from Chancery, though it had been the usage to take bail in forty shillings. (Danby v. Lawson, 1 Eq. Cas. Abr. 351.) The old rule in chancery would seem to have been conformable to this decision of the C. B., and to be, that the party was not bailable by the sheriff upon attachment. (Gilbert's Eq. Rep. 84. Prec. in Chancery, 331. S. P.)

Of what possible use would a label be to the party ? It might apprise him generally of the cause of complaint; but on his coming in, he may be bailed by the court to appear, de die in diem, until the party complaining has prepared his ' interrogatories; and he is entitled, as soon as he appears, to know the specific grounds of complaint.

When an attachment issues, after a rule to show cause, (which is the usual and the safer course,) the party is duly apprised of the offence charged. If it be peremptory and absolute in the first instance, the party must appear forthwith, and answer specified charges; so that in any view of the case, the objection to the process appears to be groundless. It alwaj's rests in the discretion of the,court, whether the rule for an attachment shall be absolute, or nisi. If the contempt appears, as it did in this case, on the affidavits, to be direct and palpable, wilful and extreme, the process frequently issues in the first instance. The doctrine at law, on this point, was declared in the Supreme Court, in The Matter of Stacey, (10 Johns. Rep, 328.) and the English authorities were referred to. The power of this Court is the same, and may be exercised more conveniently for the party, seeing that the court is always open.

Nor does there appear to be any weight in the second objection taken to the process. The affidavits stated a clear violation of the injunction which extended to the ivaters in the Bay of New-York; and the waters between Staten Island and Whitehall landing, at the city of New-York, clearly form part of the bay.

These preliminary objections being overruled, the sheriff was directed to bail the party in 100 dollars, to appear, from day to day, and not to depart without leave ; and the plaintiff was directed to exhibit and file interrogatories in four days, and .the party to be examined thereon before a Master,

The case came on to be heard upon the answers to the interrogatories taken before a Master, and was argued by the same counsel who argued the preliminary motion.

The party admitted, that on the 4th of June, he was served with the injunction, and denied that he had violated it, or intended to do so, in any respect. That he had assisted to navigate the steam boat Bellona on Sundays only, (commencing on the 13th or 20th of June,) from the wharf of D. D. Tompkins, on Staten Island, to JYew-York, and back again, “ in consequence of the said D. D. Tompkins having hired the said boat Bellona to run, under his authority, as his boat, and on his ferry and steam boat right, under a charter party or written agreement made and delivered by him to the owner of the steam boat Bellona, in presence of the deponent, whereby the said D. D. Tompkins hired her for Sundays only for one month.” — “ That he understood and believes, that the said D. D. Tompkins owns the sole and exclusive right from the representatives of R. R. Livingston and R. Fulton, deceased, and from J. R. Livingston, the above plaintiff, he. to navigate with boats propelled by fire or steam from Staten Island to JYewYork. That the owner of the Bellona, after receiving the charter party or written agreement, instructed and directed the deponent to run the boat on that route, on Sundays as aforesaid, as the boat of the said D. JO. Tompkins, and subject to his directions, as to hours, route, and passengers. That the deponent had, in no instance, otherwise navigated, or assisted to navigate, the Bellona, since the service of the injunction, on the waters prohibited by it.”

The Chancellor

considered that the defendant had sufficiently cleared himself of the contempt, and that the boat Bellona was, on" the day mentioned, the hired boat of D. D. Tompkins, and not in the employment of Gibbons; and that the defendant was, pro hac vice, the agent or . servant of L). D. Tompkins, and not of Gibbons, against whom the injunction was awarded. That the rights of D. D. Tompkins w'ere not now to be tried, and no fraud or collusion, on purpose to evade the injunction, was averred or suggested.

Ordered, that the defendant be discharged from the attachment, with costs; and that as to the other persons named therein, and not yet taken, the attachment, also, be deemed discharged.

Order accordingly.