such judge or officer. Such judge or officer, for his wilful disobedience, shall also be deemed guilty of a misdemeanor in office.

TITLE XIV.

ON CONTEMPTS AND THEIR PUNISHMENTS.

SEC. 438. Contempts, what constitutes.

439. When punishable summarily.

440. Attachment for commitment for, when issuable.

441. Bail.

442. Duty of sheriff.

443. Discharge from arrest.

444. How effected.

445. Return of warrant.

446. Penalty if found guilty.

447. Same, for omission to perform certain acts within power.

448. Indictment.

449. Proceeding when defendant does not appear.
450. Duty of officer having defendant in custody.
451. Judgment to be final, punishment.

SEC. 438. The following acts of omissions shall be deemed contempts: First. Disorderly, contemptuous or insolent behavior toward the judge, whilst holding court or engaged in his judicial duties at chambers, or toward referees or arbitrators, whilst sitting on a reference or arbitration, tending to interrupt the due course of a trial, reference or arbitration, or other judicial proceeding. Second. A breach of the peace, boisterous conduct or violent disturbance, in presence of the court or its immediate vicinity, tending to interrupt the due course of a trial or other judicial proceeding. Third. Disobedience or resistance to any lawful writ, order, rule or process, issued by the court or judge at chambers. Fourth. Disobedience of a subpoena duly served, or refusing to be sworn or answer as a witness. Fifth. Rescuing any person or property in the custody of an officer, by virtue of an order or process of such court or judge at chambers.

SEC. 439. When a contempt is committed in the immediate view and presence of the court, or judge at chambers, it may be punished summarily-for which an order shall be

made, reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein prescribed. When the contempt is not committed in the immediate view and presence of the court, or judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators.

SEC. 440. When a contempt is not committed in the immediate view and presence of the court or judge, a warrant of attachment may be issued to bring the person charged to answer; or without a previous arrest, a warrant of commitment may, upon notice, or upon an order to show cause, be granted; and no warrant of commitment shall be issued without such previous attachment to answer or such notice or order to show cause.

SEC. 441. Whenever a warrant of attachment is issued, pursuant to this chapter of this act, the court or judge shall direct, by an indorsement on each warrant, that the person charged may be let to bail for his appearance, in an amount to be specified in such indorsement.

SEC. 442. Upon executing the warrant of attachment, the sheriff shall keep the person in custody, bring him before the court or judge, and detain him until an order be made in the premises, unless the person arrested entitle himself to be discharged, as provided in the next section.

SEC. 443. When a direction to let the person arrested to bail is contained in the warrant of attachment or indorsed thereon, he shall be discharged from the arrest, upon executing and delivering to the officer, at any day before the return day of the warrant, a written undertaking, with two sufficient sureties, to the effect that the person arrested will appear on the return of the warrant, and abide the order of the court or judge thereupon; or they will pay, as may be directed, the sum specified in the warrant.

SEC. 444. The officer shall return the warrant of arrest and the undertaking, if any, received by him from the person arrested, by the return day specified therein.

SEC. 445. When the person arrested has been brought up or appeared, the court or judge shall proceed to investigate the charge, and shall hear any answer which the person arrested may make to the same, and may examine witnesses for or against him, for which an adjournment may be had from time to time if necessary.

SEC. 446. Upon the answer and evidence taken, the court or judge shall determine whether the person proceeded

against is guilty of the contempt charged, and if it be adjudged that he is guilty of the contempt, a fine may be imposed on him not exceeding five hundred dollars, or he may be imprisoned not exceeding five days, or both."

SEC. 447. When the contempt consists in the omission to perform an act which is yet in the power of the person to perform, he may be imprisoned until he shall have performed it, and in that case the act shall be specified in the warrant of commitment.

SEC. 448. Persons proceeded against according to the provisions in this chapter of this act, shall also be liable to indictment for the same misconduct, if it be an indictable offense; but the court before which a conviction is had on the indictment, in passing sentence, shall take into consideration the punishment before inflicted.

SEC. 449. When the warrant of arrest has been returned served, if the person arrested do not appear on the return day, the court or judge may issue another warrant of arrest, or may order the undertaking to be prosecuted, or both. If the undertaking be prosecuted, the measure of the damages in the action shall be the extent of the loss or injury sustained by the aggrieved party, by reason of the misconduct for which the warrant was issued, and the costs of the proceeding.

SEC. 450. Whenever by the provisions of this chapter of this act, an officer is required to keep a person arrested on a warrant of attachment in custody, and to bring him before a court or judge, the inability from illness or otherwise of the person to attend, shall be a sufficient excuse for not bringing him up; and the officer shall not confine a person arrested upon the warrant, in a prison, or otherwise restrain him of personal liberty, except so far as may be necessary to secure his personal attendance.

SEC. 451. The judgment and order of the court or judge made in cases of contempt, shall be final and conclusive. The punishment shall be by fine or imprisonment, but no fine shall exceed the sum of five hundred dollars, and no imprisonment shall exceed the period of five days, except as provided in section four hundred and forty-seven.

TITLE XV.

OF COSTS.

SEC. 452. Compensation of attorney; prevailing party allowed.

453. Docket fee, proviso.

454. When allowed, of course, to plaintiff.

455. When several actions on one bond.

456. To whom allowed.

457. When allowed or not.

458. When plaintiff fails to recover against all defendants.
459. Of appeal.

460. Of referees.

461. Costs when trial postponed.

462. When defendant has tendered amount due.

463. In action where administrator, etc., is party.
464. On review.

465. Memorandum of, to be delivered to clerk.
466. To be included in judgment.

467. Security for costs.

SEC. 452. The measure and mode of compensation of attorneys and counsellors shall be left to the agreement, express or implied, of the parties; but there shall be allowed to the prevailing party in any action in the supreme court, district courts, and probate courts, his costs and necessary disbursements in the action, or special proceedings in the nature of the action.

SEC. 453. There shall be taxed and collected on the commencement of each action or proceeding in the nature of an action in the district court, and on each appeal or writ of error had to or from said court, the sum of ten dollars, which shall be termed a docket fee, which shall be collected by the clerk, and such clerk shall pay over the same to the judge of his district and take and file and preserve his receipt therefor: Provided, That in all actions, appeals or other proceedings now pending, or that may be commenced before notice to said clerk of this law, he may collect said fee at any time before said cases are tried and determined, or otherwise disposed of, or it may be collected with the other costs of the suit or proceeding.

In

SEC. 454. Costs shall be allowed, of course, to the plaintiff upon a judgment in his favor in the following cases: First. In an action for the recovery of real property. Second. an action to recover possession of personal property when the value amounts to one hundred dollars or over; such value

shall be determined by the jury, court or referee by whom the action is tried. Third. In an action for the recovery of money or damages where the plaintiff recovers one hundred dollars Fourth. In a special proceeding in the nature of an

or over. action.

SEC. 455. When several actions are brought on one bond, undertaking, promissory note, bill of exchange, or other instrument in writing, or in any other case for the same cause of action, against several parties who might have been joined as defendants in the same action, no costs shall be allowed to the plaintiff in more than one of such actions, which may be at his election, if the party proceeded against in the other actions were at the commencement of the previous action openly within this territory; but the disbursements of the plaintiff' shall be allowed to him in each action.

SEC. 456. Costs shall be allowed, of course, to the defendant upon a judgment in his favor in the action mentioned in section four hundred and fifty-four, and in a special proceeding in the nature of an action.

SEC. 457. In other actions than those mentioned in section four hundred and fifty-four, costs may be allowed or not; and if allowed, may be apportioned between the parties, on the same or adverse sides, in the discretion of the court; but no costs shall be allowed in an action for the recovery of money or damages, when the plaintiff recovers less than one hundred dollars, nor in an action to recover the possession of personal property, when the value of the property is less than one hundred dollars.

SEC. 458. When there are several defendants in the actions mentioned in section four hundred and fifty-four, not united in interest, and making separate defenses by separate answers, and the plaintiff fails to recover judgment against all, the court shall award costs to such of the defendants as have judgments in their favor.

SEC. 459. In the following cases the costs of an appeal, or writ of error, shall be in the discretion of the court: First. When a new trial is ordered. Second. When the judgment is modified.

SEC. 460. The fees of referees shall be ten dollars to each for every day spent in the business of the reference, and the parties shall not agree upon any other rate of compensation, nor shall any other rate of compensation be allowed by the

courts.

SEC. 461. When an application is made to a court or referee to postpone a trial, the payment of costs occasioned by the