53

an answer, it should specify the suit in which it is issued, and the object of the process, or, if the body of the writ is general, the name of the suit and the object of the process should be indorsed upon it, so that the respondent may at once comply without application to the court; but when it is issued for contempt in disobeying an injunction, no specification or indorsement setting forth the cause of the proceeding is necessary. It is said that the usual practice is, when the defendant is arrested on the attachment, for the officer to take bail, conditioned for his appearance in court on the return day of the writ, and abide the order of the court. But where the attachment issued to enforce an appearance or answer, or for nonpayment of costs, or not obeying an order or decree, the respondent is to be brought into court by the officer.54 In New York, however, it was held that the sheriff could not take bail upon an attachment out of chancery, although the court could do so.55

§ 547. Form of writ of attachment.

[Title of court and cause.]

The People of the State of Illinois, to the Sheriff of La Salle County, Greeting:

Whereas, it has been made to appear that Charles L. Wilson and Andrew Shuman have printed and published an article which has been adjudged by the said court, now in session at Ottawa, in the aforesaid county and state, to have been printed and published in contempt of said court while so in session as aforesaid:

We therefore command you that you attach the said Charles L. Wilson and Andrew Shuman, so as to have their bodies forthwith before our said supreme court at Ottawa, in the county aforesaid, to answer the said court of the said contempt by them lately committed against it, as it is said, and, further, to do and receive what our said court shall in that behalf consider. Hereof fail not, and have you then and there this writ.

Witness Charles B. Lawrence, chief justice of said court, and the

53 State v. Matthews, 37 N. H. 450; In re Vanderbilt, 4 Johns. Ch. (N. Y.) 57.

54 State v. Matthews, 37 N. H. 450, citing People v. Tefft, 3 Cow. (N. Y.) 340; Morris v. Marcy, 4 Ohio, 83.

55 In re Vanderbilt, 4 Johns. Ch. (N. Y.) 57. As to taking bail, see Kingsbery v. Ryan, 92 Ga. 108, 17 S. E. 689.

seal thereof, at Ottawa, this 6th day of November, in the year of our Lord one thousand eight hundred and seventy-two.

[Seal.]

§ 548. Appearance.

W. M. Taylor, Clerk of the Supreme Court.se

It is held that, where the contempt proceeding is for the enforcement of a civil remedy, the defendant's personal appearance is not necessary to authorize the court to enter the order of committal, but, in case of criminal contempts, such personal presence is held to be necessary.57 Where a party is under a rule to show cause why an attachment should not issue against him for a contempt, if he relies upon an excuse only, he should appear in his own proper person. Where he fails to do so, no mere excuse can be regarded as a cause for discharging the rule, but only as going to the question of punishment, in the event the court finds the absence of any legal justification in the return.58

It is the duty of the party proceeded against to show cause,that is, to present an answer which, by traverse or otherwise, will meet the charge of the information. By failing to answer, the information is taken as confessed.59

§ 550. Purging contempt.

In courts of law, if the defendant clears himself by his answer, he will be discharged, and the complaint will be dismissed; whereas, in courts of equity, after a party has answered the interrogatories, his answer may be contradicted and disproved by the adverse party. The practice in chancery recognizes no such thing as a replication to an answer to interrogatories filed in the proceeding by attachment for contempt in not complying

56 This form was taken from People v. Wilson, 64 Ill. 195, 236. 67 Barclay v. Barclay, 184 Ill. 471, 56 N. E. 821, citing Pitt v. Davison, 37 N. Y. 235; Rawson v. Rawson, 35 Ill. App. 505.

58 People v. Wilson, 64 Ill. 195; People v. Freer, 1 Caines (N. Y.) 485.

59 Nebraska Children's Home Soc. v. State, 57 Neb. 765, 78 N. W. 267.

with an order of the court.60 Whether a contempt has or has not been committed does not depend on the intention of the party, but on the act done.61 In proceedings for civil contempt, it is of no consequence what is the state of mind of the offending party towards the court, and it is no defense that he did not intend any disrespect, or to be guilty of contempt towards the court.62 From the authorities it would seem that no definite rule can be formulated as to the effect of the disclaimer of an intention to be guilty of contempt. In proceedings to punish for criminal contempts, such disclaimer may have weight for the purposes of extenuation, where the facts do not render valueless a denial of such intention. A denial of intention to disobey the order of the court in a proceeding for a civil contempt may also operate to mitigate the punishment for such disobedience, if the party so disobeying stands ready to perform such order, but, if he does not so stand ready, his declarations of lack of intent to be guilty of disrespect to the court entering such order in disobeying it are of no avail.63 Denying any disrespectful design or intent in publications or utterances reflecting on proceedings before the court, or on the court, is only excuse, but will not justify the person writing or speaking the same, if the publications or utterances be, in the opinion of the court, contemptuous.64 But it is held that a supposed contempt,

60 Buck v. Buck, 60 Ill. 105; Loven v. People, 158 Ill. 159, 42 N. E. 82; Crook v. People, 16 Ill. 534; United States v. Sweeney, 95 Fed. 434; In re Debs, 158 U. S. 594; United States v. Debs, 64 Fed. 725; State v. Harper's Ferry Bridge Co., 16 W. Va. 864; Magennis v. Parkhurst, 4 N. J. Eq. 433; Underwood's Case, 2 Humph. (Tenn.) 46; Jackson v. Smith, 5 Johns. (N. Y.) 115; Wells v. Com., 21 Grat. (Va.) 500.

61 Wartman v. Wartman, Taney, 362, Fed. Cas. No. 17,210; Hughes v. People, 5 Colo. 436; State v. Simmons, 1 Ark. 265; In re Terry, 36 Fed. 419.

62 Thompson v. Pennsylvania R. Co., 48 N. J. Eq. 105, 21 Atl. 182; Spokes v. Banbury Board of Health, L. R. 1 Eq. 42, 11 Jur. (N. S.) 1010. 63 In North Carolina the denial of intent to commit a contempt is held to purge the contempt. See In re Moore, 63 N. C. 397; Ex parte Biggs, 64 N. C. 202; In re Walker, 82 N. C. 95; Kron v. Smith, 96 N. C. 386, 2 S. E. 463.

People v. Freer, 1 Caines (N. Y.) 485; People v. Wilson, 64 Ill

(561)

consisting in mere words, which are apparently intended to be scandalous and offensive, but which are susceptible of a different construction, may be explained or construed by the speaker or writer, and that, on his sworn disavowal of an intention to commit a contempt, proceedings against him should be discontinued, but that this rule does not hold where the matter spoken or written is necessarily offensive; that in such case the disavowal of intention to commit a contempt may tend to excuse, but will not justify, the act.65 It is not a sufficient excuse for a party who refuses to perform a decree or order that he acted under advice of counsel.66 The advice of counsel may be, under some circumstances, a palliation to some extent of the offense of his client in disobeying the lawful process of a court, but the extent of such palliation must depend upon the character of the advice, and the circumstances under which it was given.67 An attorney who has been ruled to show cause why he shall not be punished for contempt of court in aiding his client to obstruct the execution of a decree of the court purges himself by answering under oath that, in what he has done, he has acted in good faith, for what he believed to be the interests of his client, without any design of committing any contempt of, or offering any disrespect to, the court, or from a design to oust its jurisdiction.68

195; In re Woolley, 11 Bush (Ky.) 95; Dodge v. State, 140 Ind. 284, 39 N. E. 745; Territory v. Murray, 7 Mont. 251, 15 Pac. 145; United States v. Church of Jesus Christ of Latter Day Saints, 6 Utah, 9, 21 Pac. 524.

65 In re Woolley, 11 Bush (Ky.) 95; Fishback v. State, 131 Ind. 304, 30 N. E. 1088.

ee Buffum's Case, 13 N. H. 14; Green v. Griffin, 95 N. C. 50; Billings v. Carver, 54 Barb. (N. Y.) 40; Edrington v. Pridham, 65 Tex. 612; Smith v. Cook, 39 Ga. 191.

67 State v. Harper's Ferry Bridge Co., 16 W. Va. 864. See, for advice of counsel concerning defamatory article about a court not justifying its publication, Myers v. State, 46 Ohio St. 473, 22 N. E. 43, 15 Am. St. Rep. 638.

68 Wells v. Com., 21 Grat. (Va.) 500. See, however, In re Dubose, 109 Fed. 971.

551. Inability to perform order.

To justify an attachment for not obeying process of the court, it must appear that the disobedience was of such a nature as to indicate a design to contemn the process or authority of the court. Inability to perform a decree for payment of money because of insolvency of the defendant has been held a sufficient ground on which to refuse an attachment, if properly pleaded. Such inability should be clearly shown by the respondent, 70 and must not be the result of the fault of the respondent.71

§ 552. Form of answer to rule to show cause.

[Title of court and cause.]

And now comes Charles L. Wilson, one of the above respondents, in obedience to the rule heretofore, to-wit, on the 25th day of October, A. D. 1872, entered in said court, requiring this respondent and Andrew Shuman to show cause why an attachment should not issue against them for a contempt of said court, on account of the matters and things in a certain information filed in said court, in said rule mentioned; and in answer to the said rule this respondent says that he is the sole proprietor of the said newspaper mentioned in the said information, called the "Chicago Journal," and that the article set forth in said information was published therein on the 16th day of October, 1872, but this respondent says that neither before nor at the time of the publication had he any knowledge or information relative to the same. This respondent did not know, before said paper in which the article appeared was published, that said article, or any article upon the subject, was written or to be written, or that any article upon the subject was to be published, and that he neither advised or counseled, nor was he advised or counseled with by, any person whatever, relative to the publication of said article, or any article upon the subject.

This respondent further says that the first knowledge or informa

69 Walton v. Walton, 54 N. J. Eq. 607, 35 Atl. 289; McClure v. Gulick, 17 N. J. Law, 343; Ex parte Cohen, 6 Cal. 318; Dodd v. Una, 40 N. J. Eq. 672, 5 Atl. 155; Herrington v. Cassem, 82 Ill. App. 594; O'Callaghan V. O'Callaghan, 69 Ill. 552; Dinet v. People, 73 Ill. 183; Blake v. People, 80 Ill. 11.

70 Martin v. Burgwyn, 88 Ga. 78, 13 S. E. 958; Holtham v. Holtham, 6 Misc. Rep. 266, 26 N. Y. Supp. 762.

71 Neal v. Price, 11 Ga. 297; Lansing v. Lansing, 41 How. Pr. (N. Y.)

248.