statements concerning the court, jury or parties, calculated to influence the decision; by persons who knowingly interfere with property in the custody of the officers of the court; by persons who do not obey injunctions granted by the court.

§ 684. Direct and indirect or constructive contempt. -Where the act constituting the contempt is in the presence of the court it is a direct contempt, and the court proceeds at once to punish the offender without hearing testimony. Where the act is not in the presence of the court it is an indirect or constructive contempt, and in such cases it is usual to issue a summons to the party to appear in court in person and show cause why he should not be punished for contempt. The accused will be allowed to file an affidavit or to state facts orally on oath showing that he did not mean any disrespect to the court; or he may be compelled to answer questions put to him under the direction of the court, and if it appears upon the hearing that the accused acted in good faith and without any intention to be disrespectful to the court he will usually be discharged. When adjudged guilty the court may fine or imprison the offender.

§ 685. Attachment.-Attachment is a proceeding in aid of an action at law by which, at or after the commencement of the action, the plaintiff causes the seizure of the defendant's property to secure the satisfaction of any judgment he may recover in the action. To procure this seizure the plaintiff must make an affidavit showing that the defendant is indebted to him in a sum named; that he has sold or is about to sell and dispose of his property subject to execution, with the intent to delay or defraud his creditors; or that he is not a resident of the state where the suit is pending. These are the

28-Elem. Law.

usual causes which are alleged as a basis for the proceedings. What should be alleged, however, in the affidavit, as well as the other steps in the proceedings, are matters of statutory regulation. Before the writ of attachment is issued the plaintiff must execute an undertaking to the defendant for the payment of all costs and damages if the proceedings are wrongful and oppressive. Attachment is also used to bring persons before the court or into its custody where their presence is made compulsory by the law.

§ 686. How writ served. When the writ is issued and comes to the hands of the sheriff, it is his duty to execute it at once by the seizure of the property of the defendant sufficient in quantity to satisfy the plaintiff's demand. If through his neglect the plaintiff's claim is lost, he will be responsible for the damages, and he and his sureties may be sued therefor on his official bond. If he seizes property the defendant may reclaim it by giving a bond for its redelivery in case there is a judgment against him, or that he will pay any judgment that may be awarded against him in the action. If the sheriff is in doubt as to the ownership of property which is claimed by persons other than the defendant, he may, before seizing it, demand that the plaintiff make and deliver to him a bond to indemnify him against any judgment which may be rendered against him, in case it should turn out that the property seized did not belong to the defendant.

§ 687. Garnishment.-If, at the time of commenceing his action or afterwards, the plaintiff will make an affidavit setting forth the causes for attachment, and the additional fact that certain persons are indebted to the defendant, a writ of garnishment will be issued and

served upon the persons named, after service of which it is their duty to appear in court and make answer, and if it appears that they owe the defendant money which. should be applied to plaintiff's claim, the court will order it to be paid into court to satisfy plaintiff's judgment, if he shall recover judgment. Matters of this nature are regulated in considerable detail by statutes in the several

states.

§ 688. Capias.-Another proceeding in aid of an action is what is popularly called a capias. The use of the capias is very much restricted in the United States, and is now confined to cases of fraud or probable injury to the plaintiff by reason of the removal of the defendant to avoid service of process; and to cases where, after judgment, the defendant fraudulently conceals money or property which should be applied to its satisfaction. The writ when issued requires the officer to take and keep the defendant until he is discharged by order of court, or until he procures his release by executing such bond as the statute may require.

§ 689. Arbitration.-Arbitration is a method of adjusting conflicting claims by the parties outside of court by referring the matters in dispute to others. It is usual where there are two parties for each one to select a person to represent him. The persons so selected are called arbitrators, and if they can not agree the matter is left to a third person chosen by the arbitrators called the umpire, whose decision is final, and the decision, whether made by the arbitrators or the umpire, is called the award. There are two kinds of arbitration, arbitration according to statute and common-law arbitration. A statutory arbitration is where the parties pursue the method prescribed by law and enter into bonds for the

performance of the award. Where such an award is made and the party against whom it is given fails or refuses to perform it, the matter is presented to court, where the award is confirmed and judgment rendered accordingly, unless the award is impeached for the misconduct of the arbitrators or corruption: A common-law arbitration is where the parties agree either verbally or in writing to submit a matter to arbitration without following the forms prescribed by law. Awards made in such cases may be made the basis of an action at law to enforce its terms.

§ 690. Accord and satisfaction.-An accord and satisfaction is an agreement between a party injured and the wrongdoer, whereby the wrongdoer agrees to do something which the injured party accepts in satisfaction of his claim. The satisfaction is generally different and frequently less than what could be legally enforced. The law encourages all efforts made by parties to settle controversies out of court, and when they make such settlements they are binding and will be enforced. To be effective the satisfaction agreed upon must be performed. A mere tender of performance if not accepted is not a good satisfaction.

§ 691. Partition.-Partition is a division of real property amongst several persons who own it together. Partition may be made by agreement of the parties, and if they can not agree either of the parties can institute legal proceedings, in which the division will be made as the court may ajudge. Partition by agreement is a very simple matter, the parties executing mutual releases or conveyances to one another. They may also submit the matter to arbitration instead of resorting to legal proceedings, and in such case the award of the arbitrators or

the umpire will fix the rights of the parties. Where judicial proceedings are resorted to, the party instituting the action files his petition in the proper court, setting out by specific description the property sought to be divided, giving the names of all the parties in interest with a statement of the nature and extent of their respective interests. A notice or summons is issued and served upon all the defendants, and if any are not residents of the state a notice by publication is given in the manner prescribed by statute. Infants appear and defend either by their legal guardian or by guardian ad litem, as the statutes of the several states require. When the issues are made up and the evidence is heard, the court makes an interlocutory decree of partition fixing the shares of the parties, and adjudicating all rights and equities which may arise in the case. Where one of the parties has expended money for the preservation of the property, or where it is shown that one of the parties has received money or property from the ancestor by way of advancement of part of his portion which is to be charged against his interest, in all such cases the court will determine the rights and equities of the parties and incorporate its decisions in the interlocutory decree. This decree adjudges that the division be made by commissioners, naming them, and requires the commissioners to report their doings to the court. When this report comes in and it shows that a division has been made, any party in interest has the right to except to the report. If after hearing the report the court determines that the division is unfair, a second order or decree is made requiring the commissioners to make a new decision. When the report is confirmed the court makes a final decree which establishes the rights of the parties to their shares in severalty. If it appears that the property can not be divided without injury to the parties, the court orders it to be sold, ap