3 Lans. 408 | N.Y. Sup. Ct. | 1870
Abram E. Watson sued out a habeas corpus, directed to the sheriff of Rensselaer county, to inquire into the cause of his imprisonment. The sheriff produced the prisoner, and returned that he held him by virtue of a warrant, dated January 12, 1871, signed and sealed by the surrogate of Rensselaer county. The warrant recites an order made by said surrogate, July 6, 1870, that said Watson should be committed to the common jail of Rensselaer county, charged with the contempt mentioned in said order, till he should have paid the fine imposed upon him for his misconduct, amounting to $5,876.50, with interest from December 26, 1867. It commands the sheriff to keep said Watson in the common jail till he shall'have paid said fine and interest and sheriff’s fees, or until he be discharged by said surrogate or by due course of law.
The sheriff also returns a certified copy of the order of July 6, 1870, made in the matter of the estate of James Scudder, deceased. This order recites an order made December 26, 1867, by which it was decreed that Abram E. Watson, sole surviving executor of said deceased, should pay to George T. Scudder and others $5,876.58; that that sum had been personally demanded of Watson, and he had neglected and refused to pay; that an order was made, February 1, 1868, that an
On this return the prisoner moved for his discharge.
Huch was said on the argument, as to the injustice of the decree against Watson, made. December 26th, 1867. His counsel claimed that the money of the testator was all received by the other executor,, and none by Watson. Whatever my opinion may be on that question, it is not before me. The only matter for me to pass upon, is the legality of the commitment.
By the provisions of the statute relative to writs of habæs corpus (2 R. S., m. p. 567, §40, sub. 3), the officer is to remand the party, if he is detained in custody for a contempt specially and plainly charged in the commitment, &c.
It might seem at first, that that provision was applicable. But by reference to the previous section 22, subdivision 2, it will be seen that an order of commitment for an alleged contempt is distinguished from proceedings as for contempt to enforce the rights and remedies of the parties.
This present proceeding belongs to the latter class. It is not taken to punish an actual contempt of court, but it is to enforce the rights of a party by a proceeding as for contempt, and, therefore, section 40, subdivision 3, does not apply. And even if it were applicable, no contempt is specially and plainly charged in the commitment.
A Surrogate's Court is not a court of record. (Revised Statutes, part 3, chap. 2, title 1, § 6, sub. 5; Dayton on Surrogates, p. 6 ; Doran v. Dempsey, 1 Brad., 490.) Its proceedings are not enrolled. (3 Blk. Comm., 24.) The provisions, therefore, of part 3, chapter 8, title 13, are not applicable to Surrogate’s Courts, except that some of the sections are specially made applicable by Laws 1837, chapter 460, section 67. The sections thus made applicable to attachments in Surrogate’s Courts, are the 10th, 12th, 13th and 16th, to 32d. It appears to me, therefore, that the authority given by title 13, above mentioned, to punish by fine and imprisonment, does not apply to this case, as that authority is given only to courts of record. (§ 1.) For this reason, I do not think that the case of People v. Coles (4 Keyes, 46) applies here.
In the present case, the surrogate and the counsel for the creditors, as I understand, assert this doctrine, viz.: That when a decree has been granted by the surrogate, requiring an executor to pay a certain amount of money, and he has failed to pay; then, without regard to his ability or inability to pay, the surrogate has the power to commit him to custody by a process of such a nature, that the prisoner is not entitled to the jail liberties; cannot be discharged by the United States bankrupt law, or the State insolvent act, and can only be released from imprisonment by death, by the payment of the money, or by the discretionary action of the surrogate. It was insisted by the counsel for the creditors, unless I greatly misapprehend, that inability to pay was no excuse on the proceeding before the surrogate; but would be useful
The authority possessed by the surrogate is to be found in section 6, subsection 4, of title 1, above mentioned, which authorized him to enforce lawful orders, process, and decrees, by attachments in form similar to those used by the Court of Chancery in analogous cases.
In carrying out the authority thus intrusted to him, the surrogate must strictly follow the directions of the statute. By section 10 of the aforesaid title 13, he is first to issue an attachment directing the penalty in which the defendant is to give a bond. When the defendant is brought into court, interrogatories must be filed (section 19), to which the defendant shall make written answers. Proof may be taken, and the court shall then determine whether the defendant has been guilty of the misconduct alleged. The case of Brush v. Lee (6 Abb., N. S., 50), where no interrogatories were filed, was a proceeding by order to show cause taken under section 5, which section, as I have above pointed out, is applicable to courts of record, and not to Surrogates’ Courts.
The same is true of the case of The Albany City Bank v. Schermerhorn (9 Paige, 372). That was a proceeding in a court of record under section 5, above cited. A remark of the chancellor at page 375 is worthy of notice. He says that the filing of interrogatories “ appears to be absolutely necessary in a proceeding by attachment unless the defendant admits the alleged contempt.” Of the application of this last clause to the present case I shall speak hereafter. This course of filing interrogatories is recognized in the important case of Seaman v. Duryea (10 Barb., 523, S. C., 11 N. Y., 324). And the right of the defendant to be heard in reply to the charge of misconduct, in disobeying the decree, is fully admitted in Doran v. Dempsey (1 Brad., 490) and Saltus v. Saltus (2 Lansing, 9).
In the case of Hosack v. Rogers (11 Paige, 603), the chancellor decided that since the act to abolish imprisonment for
It is highly important, therefore, that the defendant should have the privilege granted him by statute, of interrogatories “ specifying the facts and circumstances alleged against him, and of an opportunity to answer to the same.”
It will be seen by reference to section 1 that the misconduct for which a person can be fined or imprisoned must be such as defeats, impairs, &re., the rights or remedies of a party. Now, since the enactment of a statute authorizing an execution on a surrogate’s decree, it would seem to be a harsh construction to hold that mere non-payment of a decree defeated or impaired rights or remedies. Mere non-payment; that is, where the person has not been allowed to show his inability to pay.
There is still another consideration which makes this right still more important.
It is laid down by the chancellor in The People v. Spalding (10 Paige, 284, affirmed 7 Hill, 301), that when a defendant is ordered to paly a sum of money it becomes a debt, and the precept to commit him is in the nature of a copias ad satisfaciendum, and he may be discharged under the insolvent act. But where a fine is imposed for a willful contempt, in violating an injunction, or for other criminal conduct of like nature, he cannot be discharged by insolvent laws or bankrupt law; but is in the same position as if a fine were imposed on a conviction for assault and battery. To the
From • this ease it appears that when the commitment charges the defendant with a contempt and imposes a fine, he cannot be discharged under the insolvent act, nor is he entitled to the jail liberties.
That is the form of .the. commitment in the present case. It charges him with, a contempt and imposes a fine. If, therefore, this commitment is legal, the defendant; although unable to pay, can never be relieved from close custody except in. the discretion of the 'surrogate under section 20. It is - to ■ be observed that the warrant charges the defendant with-a contempt and imposes, a fine therefor. So far as I can discover, the only authority for a surrogate to punish contempt is to be found in subdivision 6 of section 6, page 222, which applies to the preservation of order in court during a judicial proceeding. I do not think that the right of the surrogate in the present case can he increased by giving the name of contempt .to the act of the defendant. :Those sections of title 13, which are made applicable to Surrogates’ Courts,' have nothing in.them ■which, authorizes the use of the .word.
"In this present case, although^ Watson had been.attached in 1868, yet the proceeding under which this commitment was issued-seems to.have commenced by-an order .made' May 2, 1870," requiring him ■ to appear and answer for his .misconduct in not paying the aforesaid- moneys. Upon this order
Howl have• already pointed out that this process is not as it is required to be (2 E. S., in. p. 222, § 6, sub. 4), “ in form similar to that used by the Court of Chancery in analogous casés.” For the Court of Chancery in the case of a decree for the payment of money, issued a precept in the nature óf a copias ad satisfaciendum, not a commitment to close custody for an actiial contempt, or an actual disobedience. The distinction' will be seen at once on examination of the chancery formsj and it is shown in the cases deeidéd by the chancellor, and above cited.
There are many cases in the' Supreme Court now, where the defendant may' be imprisoned under execution. A recovery of money against a trustee would be one instance. (Code, ■ § 179, sub. 2.) The form' of such an execution would be to commit the defendant till he should - pay the judgment or be -discharged according to law. (Code, § 289, sub. 3.) But on such a recovery no process could issue which ‘ should place a' defendant in close custody, as he might be placed for violating an injunction. The analogy to the present case seems to me to be strong.
I have not overlooked the case of Seaman v. Duryea ; but it is to be observed that that case was deci'déd on demurrer to
But it is worthy of remark, that in that very matter the defendant, Seaman, having sued out a habeas corpus, and having been remanded by the county judge, was discharged by the judgment of the General Term delivered on certiorari. (New York Legal Observer, vol. 7, page 70.)
By the 23d section (2 R. S., m. p. 538), when the misconduct consists of the omission to perform some act or duty which it is yet in the power of the defendant to perform, he shall be imprisoned only until he shall have performed such act or duty, and paid such fine, &c.
Now, the misconduct alleged in the present instance was the omission to pay. It seems to me, therefore, that this section implies that there must be an adjudication that it is in the power of the defendant to pay. And this is a matter which the defendant ought to have had an opportunity to answer on interrogatories. But he had no such opportunity, and no such adjudication was made.
The conclusions to which I have come, are
1st. That the Surrogate’s Court not being a court of record, . cannot punish as for a criminal contempt, except for interruptions to business during judicial proceedings.
2d. That for the same reason, it cannot enforce civil remedies by proceedings as for contempts.
3d. That the enforcement of decrees by attachment must be by process similar to that of the Court of Chancery in analogous cases, and must be governed by sections 16, &c., above mentioned.
4th. That those sections make the filing of interrogatories, and the opportunity to answer imperative, and that the surrogate cannot proceed otherwise.
5th. That in eases analogous to the present, the process of the Court of Chancery was in the nature of a ca sa, and not
6th. That the process against this defendant on the contrary, is in the form of a commitment for a contempt.
7th. That the prisoner must be discharged.