whom the falsehoods have been imputed. Felkin v. Herbert, 10 Jur. N. S. 62.

1. Inability to Perform Act for Benefit of Adverse Party. Obviously this general rule applies whether the alleged contempt be civil, consisting of a failure to comply with an order made for the benefit of an adverse party, or purely criminal. Both are treated together. See supra, Inability to Comply with Order.

Wart

2. Damage Caused to Adverse Party. man v. Wartman, Taney's Dec. (U. S.) 362; Wilcox Silver Plate Co. v. Schimmel, 59 Mich. 525; Thompson v. Pennsylvania R. Co., 48 N. J. Eq. 105; Watson v. Citizens' Sav. Bank, 5 S. Car. 159.

On a bill filed praying that certain money held in trust by the defendant be brought into court, the defendant answered admitting that he had the money in his hands, but resisting the claim to it set up by the complainant. An order was made requiring the money to be brought into court. This order was disobeyed, and as a showing why he should not be punished for contempt, the defendant showed that he had previously paid the money to the persons whom he considered to be entitled to it. The court held that the question whether a contempt had or had not been committed did not depend on the intention of the party, but on the act done. Wartman v. Wartman, Taney's Dec. (U. S.) 362.

Neither the belief, motive, nor intent with which a writ of injunction is disobeyed in any manner varies the responsibility of the contemnor, and he will not be allowed to purge the contempt by showing that in committing a breach of the injunction he acted not for himself, but as agent for a stranger to the cause, and was ignorant that such act was a breach of the injunction. Wilcox Silver Plate Co. v. Schimmel, 59 Mich. 525.

Contempt proceedings instituted by private individuals for the purpose of protecting or enforcing their rights are civil. In these proceedings the state of mind of the offending party toward the court is immaterial, and it does not purge the contempt for the contemnor to show that he did not intend in what he did to contemn the authority of the court. Thompson v. Pennsylvania R. Co., 48 N. J. Eq. 105.

Where in a suit by a creditor against a bank to wind up its affairs on the ground of insolv ency, an order is made enjoining the bank, its officers or agents, from paying out money or disposing of its property, it is a contempt for its attorney to advise its officers and stock

holders to file a petition in bankruptcy with a view of removing its property beyond the jurisdiction of the court. A disavowal of an intention to commit a contempt does not purge the contempt or relieve the attorney from the consequences of the act committed by him. Watson v. Citizens' Sav. Bank, 5 S. Car. 159.

Reasons for the Rule. In the case of Thompson v. Pennsylvania R. Co., 48 N. J. Eq. 105, where the wrong complained of consisted in the disobedience of an injunction to the detriment of an adverse party, after clearly drawing the line between civil and criminal

contempts the court observes: "The proceeding here belongs to the second class" (referring to civil contempts), "and the question is,

whether in such a case the court is warranted in taking any action in personam, in the absence of a wilful intention to contemn its dignity and authority and to disregard its order. I think, upon principle, that the answer must be in the affirmative, provided, of course, the person acting contrary to the order of the court, or failing to act in accordance therewith, as the case may be, is conscious of the quality of his act or non-action in that respect. For instance, if A be ordered to pay a sum of money to B, and, being able so to do, fails to make the payment, of what consequence is it to B what may have been the motive which induced the failure, or what may have been the state of A's mind toward the court? And if B brings the breach of its order to the attention of the court, and asks that its process do issue against A therefor, must his application be refused if A can satisfy the court that he entertained no disregard for the court, and did not mean to set its order at defiance? in the case of a nuisance. If A be enjoined from so using a dam on his land as to flood B's land, and fails to observe the injunction, and B's land is flooded thereby, in any and all such cases it seems to me that it is no answer to the complaint of the injured party to say that the party inflicting the injury meant no disrespect to the court. The injury

So

suffered by the complaining party is neither increased nor diminished, nor in any way affected, by the state of mind towards the court of the party inflicting the injury; and the breach of the injunction consists in doing the forbidden thing, and not in the intention with which it is done."

3. Motive as Mitigating Punishment. - Vose v. Reed, I Woods (U. S.) 647; William Rogers Mfg. Co. v. Rogers, 38 Conn. 121; Des Moines St. R. Co. v. Des Moines Broad Gauge St. R.

Co., 74 Iowa 585; State v. Collins, 62 N. H. 694.

Where a person has been guilty of a technical contempt, in violating an injunction, but declares on oath that he was not aware of the violation, and submits to the direction of the court, he will be allowed to purge the contempt by undoing or reversing his acts, when it is practicable to do so. Vose v. Reed, I Woods (U. S.) 647.

1. Des Moines St. R. Co. v. Des Moines Broad-Gauge St. R. Co., 74 Iowa 585.

Where No Damage Was Suffered by Adverse Party. Where the conduct of parties sought to be attached for a violation of an injunction, was literally a breach of the injunction, but not so in spirit, and where it clearly appeared that there was not only no intention to disregard the injunction, but a supposition that the action would receive the approbation of the court, and no damage was suffered by the adverse party, they were not punished for the contempt. Fraas v. Barlement, 25 N. J. Eq. 84.

2. Advice of Counsel - Will Not Justify Disobedience of Order. - Bate Refrigerating Co. v. Gillett, 30 Fed. Rep. 683; Buffum's Case, 13 N. H. 14; Cape May, etc., R. Co. v. Johnson, 35 N. J. Eq. 422; McKillopp v. Taylor, 25 N. J. Eq. 139: Fitzgerald v. Christl, 20 N. J. Eq. 90; Lansing v. Easton, 7 Paige (N. Y.) 364; Capet 7. Parker, 3 Sandf. (N. Y.) 662; Hawley v. Bennett, 4 Paige (N. Y.) 164; Power v. Athens, 19 Hun (N. Y.) 165; Rogers v. Paterson, 4 Paige (N. Y.) 450; Columbia Water Power Co. v. Columbia, 4 S. Car. 389; State v. Harper's Ferry Bridge Co., 16 W. Va. 864. See the title ADVICE OF COUNSEL, vol. I, p. 898.

Neither the advice of his attorney that the injunction is illegal, nor the declared intent of the magistrate to disregard it, will justify or excuse the party enjoined, in violating the injunction. Capet v. Parker, 3 Sandf. (N. Y.) 662.

An attempt to justify a disobedience of an injunction, by showing that the act was committed after consultation with counsel and upon his advice that notice of the injunction might safely be disregarded, affords no justification. Cape May, etc., R. Co. v. Johnson, 35 N. J. Eq. 422; McKillopp v. Taylor, 25 N. J. Eq. 139.

It will not palliate a contempt for a contemnor to show that he acted under the advice of counsel, where it appeared that the latter was without the necessary papers to form an opinion, or time to deliberate upon the question, and heard only the contemnor's version of the affair. Fitzgerald v. Christl, 20 N. J. Eq. 90.

Reason for the Rule. In Hawley v. Bennett, 4 Paige (N. Y.) 164, it was said that, so far as the rights of the party have been "affected by the breach of an injunction, it is no defense to the person who has been guilty of violating the same, that he did it under the

2

advice of counsel; although if he has acted in good faith it may be sufficient to protect him from punishment as for a criminal contempt. The rights of parties must be protected against the wrongful acts of the adverse party although he may have acted under the advice of counsel."

Contra. When a witness before a referee refuses to answer questions which are ruled by the referee to be proper, but in doing so acts upon the advice of counsel, he will be excused from the punishment for contempt which otherwise would be imposed. U. S. v. Church of Jesus Christ, etc., 6 Utah 9.

3. When Advice of Counsel Will Palliate offense. Matthews v. Spangenberg. 15 Fed. Rep. 813; Bate Refrigerating Co. v. Gillett, 30 Fed. Rep. 683; Power v. Athens, 19 Hun (N. Y.) 165; Lansing v. Easton, 7 Paige (N. Y.) 364; People v. St. Louis, etc., R. Co., 19 Abb. N. Cas. (N. Y. Supreme Ct.) 1; Billings v. Carver, 54 Barb. (N. Y.) 40; Hawley v. Bennett, 4 Paige (N. Y.) 164; Columbia Water Power Co. v. Columbia, S. Car. 389. See the title ADVICE OF COUNSEL, vol. 1, p. 898.

Where a contemnor in disobeying an injunction acts under the mistaken advice of counsel that such injunction is superseded by an appeal taken therefrom, the fine imposed should not exceed the actual damage sustained by the adverse party. Power z. Athens, 19 Hun (N. Y.) 165.

The fact that contemnors in violating an injunction acted under erroneous advice of counsel, will not protect them from a fine sufficient to compensate the adverse party, although such advice may palliate the cffense so as to protect them from further punishment. Lansing v. Easton, 7 Paige (N. Y.) 364.

That a party acted under an advice of counsel, does not relieve him from the charge of contempt. It is a matter of mitigation only. Columbia Water Power Co. z. Columbia, 4 S. Car. 389.

The fact that persons in violating an injunction acted on the advice of counsel, will not purge them of contempt; but such fact will be considered by the court in imposing the punishment. Bate Refrigerating Co. v. Gillett, 30 Fed. Rep. 683.

Where the defendant has been guilty of a contempt in disregarding an injunction of the court, but the act of contempt does not appear to be at all wilful or defiant, but merely the exercise of a supposed right under advice taken and given in good faith, it does not deserve punishment as such, but he should make the orator whole as to the damages sustained thereby. Matthews v. Spangenberg, 15 Fed. Rep. 813.

The wise exercise of the discretion vested in the court requires it to relieve a party when the effect of his counsel's mistaken advice may be to keep him in jail indefinitely, by reason

of his inability to pay a large sum of money. Hence where a defendant was adjudged guilty of contempt in failing to appear and submit to an examination as to his property, and it was shown that such failure was caused by the advice of counsel, given in good faith and in good faith relied upon by the defendant, that there had been no service of the original order, the order was modified so as to direct that the defendant be adjudged guilty of the contempt charged, and be fined, unless he appeared and submitted to an examination under the original order, and made an affidavit to the effect that he had made no transfer of his property, since the order for his examination, except and unless under the provisions of the bankrupt act. Billings v. Carver, 54 Barb. (N. Y.) 40.

Where Counsel is Ill-Advised as to Facts. - The advice of counsel may under some circumstances be a palliation 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 such advice and the circumstances under which it has been given. The offense will be palliated by such advice to the extent only of making it a reckless disobedience of the process of the court instead of a wilful contempt, when the advice is hasty and inconsiderate, or where the party through carelessness has failed to give the counsel correct information as to the facts of the case. State v. Harper's Ferry Bridge Co., 16 W. Va. 864.

circuit court shall have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of an

assignee, etc. In Wilkinson v. Wilkinson, 2 Curt. (U. S.) 583, it is said: The term 'other chose in action' is broad enough to comprehend either case, and the word contents is too ambiguous to restrain that general term. The contents of a note are the sum it shows to be due; and the same may, without much violence to language, be said of an account."

There

A suit to compel the specific performance of a contract or to enforce its other stipulations is a suit to recover the contents of a chose in action. The court said: "This principle was settled in the early case of Sere v. Pitot, 6 Cranch (U. S.) 332, under section II of the Act of Sept. 29, 1789, c. 20, which is re-enacted in section 629 of the Revised Statutes. the plaintiffs were the general assignees of the effects of an insolvent debtor, by operation of law. It was contended that the statute applied only to a voluntary assignment of a particular chose in action, and that the word contents did not apply to accounts or unliquidated claims, but was confined to transferable paper. But the court held that the statute intended to except suits in virtue of equitable assignments, as well as suits in virtue of legal assignments, and to exclude from the federal courts the assignee of all the open accounts of a merchant, as well as the same person when the assignee of a particular note. The court say:

'The term ' other chose in action' is broad enough to comprehend either case, and the word contents is too ambiguous in its import to restrain that general term. The contents of a note are the sum it shows to be due; and the same may, without much violence to language, be said of an account.' Following out this principle, the obligation or the promise contained in a contract is its contents, when a suit is brought to enforce such obligation; and it does no violence to language to say that the suit is one to recover such contents. Corbin v. Black Hawk County, 105 U. S. 666; Shoecraft . Bloxham, 124 U. S. 730. See also Republic Iron Min. Co. v. Jones, 37 Fed. Rep. 723; Barney v. Globe Bank, 5 Blatchf. (U. S.) 115; Simons v. Ypsilanti Paper Co., 33 Fed. Rep. 193.

Insurance. (See also the title FIRE INSURANCE. And see CONTAIN.) In Farmers' Mut. F. Ins. Assoc. v. Kryder, 5 Ind. App. 430, it was held that insurance on a barn and its contents did not cover horses killed by lightning outside of the barn, although they were stabled in the barn.

Contested and Doubtful. — A Georgia statute provided that the executors and administrators might compromise contested or doubtful claims. In construing this statute the court, in Maynard v. Cleveland, 76 Ga. 71, said: "The two words contested and doubtful' are not precisely synonymous, so as to make the use of both an idle repetition. A claim may be contested, which the executor sees to be beyond doubt as to its legality, and which no court would hold to be of doubtful obligation. So the executor may have just cause to doubt its validity, and an enlightened court would consider it of uncertain force, and yet no actual contests have arisen. But whether it be contested or doubtful, this section covers it. That claims whose justice and legality may be questioned are the matters here referred to, appears from the following clause in the section, to submit such matters to arbitration.'" See also DOUBTFUL; and see the title EXECUTORS AND ADMINISTRATORS.

Contested Election. (See also the title ELECTIONS.) In Robertson v. State, 109 Ind. 116 it is said: "The phrase 'contested elections' has no technical or legally defined meaning. An election may be said to be contested whenever an objection is formally urged against it which, if found to be true in fact, would invalidate it. This must Le true both as to objections founded upon some constitutional provision as well as upon any mere statutory enactment."

In Burke v. Perry, 26 Neb. 420, it is said: “A contest of an election must be what its name implies an adversary proceeding by which the matters in controversy may be settled upon issues joined."

The Constitution of Missouri provided that in all cases of contested elections, the ballots cast might be counted and compared with the list of voters. In construing this provision the court, in State v. Francis, 88 Mo. 561, said: "The question then arises, what is meant by the phrase contested elections,' as employed in the above sections of the constitution? Relator's contention is, that it relates to any proceeding in which the election of one holding an office is contested; while respondent insists that it relates only to statutory contests in which the contestant seeks not only to oust the intruder, but to have himself inducted into the office. The latter we think the correct view."

Actually Touching. The charter of the New Orleans Water-Works Company (Acts La. 1877, p. 51) provides, in section 18," that nothing in this act shall be so construed as to prevent the city council from granting to any person or persons, contiguous to the river, the privilege of laying pipes to the river, exclusively for his or their own use." The Supreme Court of the United States decided in New Orleans WaterWorks Co. v. Rivers, 115 U. S. 674, that the proprietor of a building five blocks from the river was not a contiguous person. Therefore, no lot can be contiguous unless it actually fronts on the river, or is separated from the river only by a public highway, with no private owner intervening, or, possibly, on a block or square so situated. New Orleans Water-Works Co. v. Ernst, 32 Fed. Rep. 5.

Deed. The primary meaning of contiguous is in actual contact or touching. It has therefore been held that a deed conveying certain salt works and lands contiguous thereto did not convey land separated from the works by a distance of about three-quarters of a mile. Holston Salt, etc., Co. v. Campbell, 89 Va. 396.

Contiguous Proprietors. Contiguous proprietors, under a statute which forbids the closing of public roads without the consent of the contiguous property owners, mean those whose land actually touches the road, or through whose land the road passes. Vicinal are not necessarily contiguous proprietors. Raxedale v. Seip, 32 La. Ann. 435.

Local Assessments. (See also the title SPECIAL ASSESSMENTS.) The words “contiguous property," as used in the statute in relation to special taxation for local improvements, are to be understood in their popular sense; the word contiguous meaning in actual or close contact, touching, or near. If the improvement is of a street or sidewalk, contiguous property is such as abuts upon the street or sidewalk, or is bounded by the street. Adams County v. Quincy, 130 Ill. 567.

Mechanics' Lien. (See also the title MECHANICS' LIEN.) A Missouri statute provided that only one lien should be necessary where the separate buildings should be erected under one general contract and upon contiguous lots. In construing this statute the court said in Bulger v. Robertson, 50 Mo. App. 503: "As a further objection to the enforcement of this lien it is claimed that these two buildings are not upon contiguous lots. This contention has for its basis the fact, that although the two houses on which the slate work was done are located on adjoining platted lots, yet as the two buildings are apparently separated by another house (also located on one of the lots), and that the owner had made separate deeds of trust on each half lot, then it is contended that this effected a division of said fifty-foot lots into twenty-five foot lots, and that the two houses on which the work was done were thus thrown on lots that were not contiguous. We must hold this point, too, against the defendants.