taking goods claimed by the plaintiff, the constable may give in constable for taking evidence the judgment upon which the sale of the goods was goods claim made under which the plaintiff claimed, in order to show that ed by the plaintiff, he the judgment was void and the sale fraudulent, and he may of- may give in fer other facts and circumstances, in order to show that the the judg sale, under which the plaintiff claims the goods, was fraudu. ment under lent. 6. evidence which the plaintiff claims, in or der to show that it was fraudulent. a The transe as cript of th justice's to docket not evidence to HUNT V. BOYLAN, Sept. T. 1822. 1 Halst. N. J. Rep. 211. This was an action commenced by Boylan against Hunt, constable, for not returning an execution within thirty days, is required by the statute. Upon the trial below, in order prove the fact of the delivery of the execution to the constable, the transcript of the docket of the justice, before whom the delivery of judgment had been obtained on which the said execution issu- tion to the ed, was read in evidence, and upon this evidence judgment was constable. rendered against Hunt. Motion to reverse the judgment Per Cur. The transcript was not evidence to prove the delivery of the execution to the constable, because the justice is not required or authorised to enter upon his docket the ordinary delivery of the execution to the constable. Judgment reversed. prove the the execu 7. DAY AND CRAVEN V. HALL. Feb. T. 1831. 7 Halst. N. J Rep. 205. S. P. SMALLY AND CORIELL V. VANORDEN. 2 South. Rep. 811. The Court in this case decided, that a constable who takes a A constable bail bond is a competent witness to prove its execution. (H) FEES OF. 1. who takes u bail bond is compe tent to prove its ex ecution. To entitlca must levy PIXLEY V. BUTTS. Oct. T. 1823. 2 Cowen's N. Y. Rep. 422. constable to S. P. HILDRETH V. ELLICE. 1 Caine's Rep. 192; AD- his fecs, he AMS v. HOPKINS. 5 Johns Rep. 252; BoswELL V. the money, DINGLEY. 4 Mass. Rep. 413. except where he is In this case the Court, Savage, C. J., held, that a constable prevented by the act who makes a levy, is entitled to his fees, when by the acts of of the plain the plaintiff or by the operation of the law, he is prevented eration of iff or by op from collecting the money. law. He cannot recover his an execu he has levi ed upon and return 2. PIXLEY V. BUTTS. October T. 1823. 2 Cowen's N. Y. Rep p. 421. Butts sued Pixley in the Court below for constable's fees. The plaintiff proved that he had an execution issued by a tion, where justice in favour of the defendant, against one Van Elton; that he levied on a cow of Van Elton, and advertised her for sale. property, At the day of sale, he offered the cow for sale, but though a ed that it number of persons attended, no one bid any thing. He therehis hands, fore returned the execution to the justice, stating that the cow for want of was in his possession, unsold for want of bidders. The execution had nearly expired when the cow was put up for sale. Judgment for the plaintiff, damages $1 38. Error to this Court. remains on buyers. It is a mat ter of discre tion with the board of supervisors Per Cur. Savage, C. J. I am of opinion the justice erred in awarding to the constable his fees on the execution, before he had completed the service. He should, under the execution first issued, have proceeded in due season to a sale. If no bidders had appear, he might have postponed the sale, and given notice to the plaintiff to attend to bid for himself. Judgment reversed. 2. EX PARTE TARRINGTON. Oct. T. 7823. 2 Cowen's N. Y. Rep. p. 407. The Court, Savage, C. J., held that a subpœna may be served by any person in a criminal case, the same as in a civil case; what fees to and the allowance to a constable or other person for serving one in a criminal case, is a matter of discretion with the board subpanas of supervisors with which this court will not interfere. allow for serving in a crimin al case. For neglect of duty in the service *of an execu tion the con stable is lia ble to pay not only the debt, or damages and costs (I) COSTS IN SUITS BY AND AGAINST. 1. HUNT V. GULICK, ET AL. Sept. T. 1827. 4 Halst. N. J. Rep. 205. S. P. HUNT V. BOYLAN. 1 Halst. Rep. 211. Certiorari to the Common Pleas. The plaintiff, a constable, was sued in the court below for neglect of duty in the service of an execution, and the plaintiffs recovered judginent against him for the interest as well as the cution, but debt and costs mentioned in the execution, and this court affirmed the judgment of the C. P. mentioned in the exe also the in terest. 2. recover the the execu THOMAS V. WEED, Aug. T. 1817, 14 Johns. N. Y. Rep. 255 Weed brought an action of debt against Thomas, a constable, But if the plaintiff pur for not returning an execution. The justice gave judgment for sue the stat ute remedy the plaintiff for the amount due on the execution, with interest. of N. York The only question was, whether the interest was recoverable. he can only Per Cur. The remedy by action of debt for "the amount of amount of the excution," given by the 13th section of the 25 dollar act, tion. (1 N. R. L. 395.) is in the nature of a penalty, and the measure of the penalty cannot be extended beyond the letter of the statIf the plaintiff below had pursued his common law remedy, by a special action on the case, for negligence, or by an action for money had and received, he would be entitled to intereston the sum proved to have been received, by the constable, or actually lost by his negligence. If the creditor, as in this case, chooses to avail himself of the statute remedy, so as to relieve himself from the necessity of proving actual loss, he must be satisfied with the "amount of the execution." Judgment reversed. ute. 3. WALES V.HART AND DAWD, Oct. T. 1823, 2 Cowen's N. Y. Rep. 426. On certiorari. Trover in the Court below by Wales against Where a Hart and Dawd. The defendants pleaded jointly the general constable is issue; and the verdict was for the defendants. The defence sued for sel ling proper was that the property in question belonged to one Davis, against ty on execu whom Hart, as constable, had an execution by virtue whereof, tion, and judgment is he levied upon and sold the property of Dawd. The justice in his favor, gave judgment for the defendants, with double costs. Per Cur. The defendant, Hart, would have been entitled to he is enti tled to doub le costs, but otherwise where he is sued joint ly.* 4. CURTISS V. HULSOZER. Feb. T. 1819, 2 South. N. J. Rep. 496. Sutherland J., decided that a constable may recover from a plaintiff in attachment, legal costs of executing the A constable may recov writer legal * A constable who obtains a verdict in an action against him, is entitled to double costs, but it must be certified by the judge that he was acting in the execution of his office; Grendley v. Halloway, 1 Doug. 307; and 6 Petersdorff's Abr. 102. (151.) costs for ex ecuting a where the defendant has no property; but not expense of re writ, but not expense moving goods, or of suit brought against him for executing the incurred in writ improperly. conse quence of a suit brought against him for execut ing it im properly. A constable ter prosecu tion coin menced for is liable for 5. GLASS V. JACOBY. Fall T. 1813, 6 Little's Ky. Rep. 181. Fer Cur. Ousley, J. Charges having been exhibited in the resigning af county court, to remove from office, Glass, who was constable for the county, before a decision was had, Glass resigned his of his removal fice, and judgment was entered against him for the costs. We from office, can perceive no error in the judgment of that court, in giving the costs of Costs. Had the court decided on the charges, and removed the prosecu Glass from office, it is not pretended but judgment for the costs should have been awarded against him. His having resigned his office, thereby avoiding an inquiry into the charges, surely cannot protect him from the payment of the costs for which he, on a decision sgainst him, would have been liable. tion. Consuls. See tit. Ambassador, vol. 1. p. Contempts.* 312. I. CONTEMPTS AGAINST COURTS OF JUSTICE. (B) SPEAKING CONTEMPTUOUSLY OF THE COURT, p. 324. (D) SHERIFFS, JURORS, &c., p. 327. (E) WITNESSES, p. 328. II. POWER OF JUSTICES TO COMMIT TO PRISON FOR CONTEMPTS, p. 331. III. PROCEEDINGS AGAINST PARTIES IN CONTEMPT, P, 333. IV. RIGHTS OF PARTIES IN CONTEMPT, p. 336. In the New-York Revised Statutes, vol. 2, p. 278, the following provision relative to contempts are to be found. Sec. 10. Every court of record shall have power to punish as for a criminal contempt, persons guilty of either of the following acts, and no others. 1. Disorderly, contemptuous, or insolent behaviour, committed during its sittings, immediately in view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority. I. CONTEMPTS AGAINST COURTS OF JUSTICE. (A) WHAT ACTS CONSTITUTE 1. A CONTEMPT OF COURT. HOLLINGSWORTH V. DUANE, 1801. Wallace's U. S. Rep. 77. 102. S. C. Wharton's Dig. of Penn. Rep. 102. Per Cur. A publication, pending a suit, reflecting on the A publica court, the parties to the suit, the witnesses, the jurors, or the counsel is a contempt of court. 2. tion reflect ing on the court, ju rors, wit nesses, par ties to the suit, or coun sel, is a con BAYARD, ET AL. V. PASSMORE, Dec. T. 1802, 3 Yeates' Penn. Although it Per Cur. The publication of a paper to prejudice the public does not ex 2. Any breach of the peace, noise or other disturbance, directly tending to interrupt its proceedings. 3. Wilful disobedience of any process or order, lawfully issued or made by it. court. 5. Contumacious and unlawful refusal of any person to be sworn as a witness; and when so sworn, the like refusal to answer any legal and proper interrogatory. 6. The publication of a false, or grossly inaccurate report of its proceedings; but no court can punish as a contempt, the publication of true, full and fair reports of any trial, argument, proceeding, or decision, had in such court. Sec. 11. Punishment for contempts may be by fine, or by imprisonment in the jail of the county where the court may be sitting, or both, in the discretion of the court, but the fine shall in no case exceed the sum of two hundred and fifty dollars, nor the imprisonment thirty days; and where any person shall be committed to prison for the non-payment of any such fine, he shall be discharged at the expiration of thirty days. Sec. 12. Contempts committed in the immediate view and presence of the court, may be punished summarily; in other cases, the party charged shall be notified of the accusation, and have a reasonable time to make his defence. Sec. 13. Whenever any person shall be committed for any contempt, specified in this article, the particular circumstances of his offence, shall be set forth in the order or warrant of commitment. Sec. 14. Nothing contained in the preceding sections, shall be construed to extend to any proceeding against parties or officers, as for a contempt, for the purpose of enforcing any civil rights or remedy. Sec. 15. Persons punished for contempt under the preceding provisions, shall notwithstanding be liable to indictment for such contempt, if the same be an indictable offence; but the court, before which a conviction shall be had on such indictment, shall, in forming its sentence, take into consideration the punishment before inflicted. • A contempt, in its legal acceptation, means the treating of a court of justice, or person invested with judicial authority, in a contumelious and disrespectful manVOL. III. 41 |