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the person thereby affected. If a party conceals himself to avoid personal service of the notice, perhaps notice may be served upon an attorney who has appeared for him in the proceeding in which the contempt was committed."

$343. Hearing upon applications for attachments.When the contempt was committed in the presence of the court, no notice nor trial of any disputed question of fact is necessary. It has been held at circuit that in any other case, at least when an attachment has been issued, a person charged with contempt may demand that interrogatories be filed concerning the facts which, it is claimed, constitute his offense; and that, if he denies the facts charged under oath, he cannot be punished, the only remedy being an indictment against him for perjury: 2 but a recent decision of the Supreme Court seems contrary to these rulings; and it seems that this never was the rule in equity. He cannot be compelled to answer interrogatories. Otherwise, when at the argument of the motion for an attachment the party accused of disobedience denies the charge, the court may either determine the disputed question of fact upon such affidavits as are then presented to it, or refer the question to a master. If it finds the charge proved, or the master so report and his report be confirmed, the court may then punish the offender by fine or imprisonment, and, if a fine be imposed, may direct him "to stand committed till paid." The court cannot punish a contempt by striking out an answer or by refusing a hearing upon the merits. The court may make a preliminary order directing that

8 Gray v. Chicago, L. & N. R. Co., 1 Woolw. 63; Hollingsworth v. Duane, Wall. C. C. 141.

9 Eureka L. & Y. C. Co. v. Superior Ct. of Yuba County, 116 U. S. 410, 418. § 343. Ex parte Terry, 128 U. S. 289; In re Terry, 36 Fed. R. 419.

2 U. S. v. Dodge, 2 Gall. 313; Hollingsworth v. Duane, Wall. C. C. 77. See U. S. v. Duane, Wall. C. C. 103.

3 Savin, Petitioner, 131 U. S. 267. 4 U. S. v. Anon., 11 Fed. R. 761. See U. S. v. Debs, 64 Fed. R. 724.

Hollingsworth v. Duane, Wall. C. C. 77. See U. S. v. Duane, Wall C. C. 102.

6 Fischer v. Hayes, 6 Fed. R. 63; U. S. v. Debs, 64 Fed. R. 724. See Woodruff v. North Bl. G. M. Co., 45 Fed. R. 129. In the absence of a denial, machines or articles sold under the same name as those the sale of which was enjoined will be presumed to be of the same character. Stahl v. Ertel, 62 Fed. R. 920; Stebbins v. Duncan, 108 U. S. 32, 48; Brown v. Metz, 33 Ill. 339.

7 Fischer v. Hayes, 6 Fed. R. 63; U. S. R. S., $ 725.

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he be fined; determining the principles with regard to which the amount of the fine should be estimated; and directing either the submission of the amount to the court upon affidavits, or a reference to a master for that purpose. When an injunction against the infringement of a patent has been violated, the fine may include the profits made by the defendant by his contemptuous acts; and in that case the order may direct that that part of the fine be paid to the complainant.10 When the contempt consisted in the institution of a suit, the fine should include the expenses of the defense of such suit including reasonable counsel fees, which must be paid to the party against whom the contemptuous suit was brought." A reasonable counsel fee for the contempt proceedings is usually included in the fine.12 In these cases the writ of attachment does not issue till after the final order. "In proceedings in equity between parties to a suit for contempt in not obeying the process of the court, or any order or decree in the cause, the proceedings in equity between parties to a suit for contempt in not obeying the process of the court, or any order or decree in the cause, the proceedings on the attachment may be, and usually are, entitled as in the original suit, though it is not irregular to entitle them in the name of The People, on the relation of the person prosecuting the attachment against the defendant or party proceeded against. Where the attachment proceeding for a contempt is against a witness, or a person not a party to the suit, the practice is to entitle the order for attachment, and all subsequent proceedings thereon, in the name of The People, on the relation, etc." 13 On a motion for a commitment for contempt when served with a subpoena, it was held that two witnesses must be produced to prove contemptuous words, but that one was sufficient to prove a battery upon the process-server. A State statute regulating the prac

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9 Fischer v. Hayes, 6 Fed. R. 63.

10 Searles v. Worden, 13 Fed. R. 716; S. C. as Worden v. Searles, 121 U. S. 14; In re Mullee, 7 Blatchf. 23; Doubleday v. Sherman, 8 Blatchf. 45.

11 Bridges v. Sheldon, 7 Fed. R. 747. 12 Stahl v. Ertel, 62 Fed. R. 920. 13 Blatchford, J., in Fischer v. Hayes, 6 Fed. R. 63. See also People v. Craft,

7 Paige (N. Y.), 235; Stafford v. Brown, 4 Paige (N. Y.), 360; U. S. ex rel. Southern Exp. Co. v. Memphis & L. R. Co., 6 Fed. R. 237. But see U. S. v. Wayne, Wall. C. C. 134.

14 Anon., 3 Atkyns, 219. As to sufficiency of proof, see U. S. v. Jose, 63 Fed. R. 951.

tice in contempt proceedings does not affect the practice in the Federal courts.15 But criminal proceedings to punish contempts are, to a certain extent, by statute assimilated like other criminal proceedings to the State practice. It has been said that proceedings to punish for contempt of court are of a criminal rather than a civil nature; 17 but that the offense is not a felony, but more in the nature of a misdemeanor.18

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§ 344. Order of commitment. It is better practice for the order committing a person for contempt to recite the offense charged, although it seems that this is not necessary if it describes the same by reference to other proceedings.1 It has been said that an order committing a person for contempt cannot be altered at a subsequent term of the court; that the court cannot subsequently discharge the party committed upon proof of his inability to comply with the order, his remedy being an application to the President for a pardon; and that such an order is void if it does not express or limit the term of imprisonment. Before the Evarts Act no appeal lay from an order committing a person for contempt. If such an order is void, the prisoner may be discharged on habeas corpus," but not for irregularities,' nor for the erroneous construction of a statute, when the court had jurisdiction to grant the order.

15 Searles v. Worden, 13 Fed. R. 716. 16 In re Riker, 66 Fed. R. 290.

17 Ex parte Kearney, 7 Wheat. 38; In re Pitman, 1 Curtis, 186; Fischer v. Hayes, 6 Fed. R. 63; Hayes v. Fischer, 102 U. S. 121; New Orleans v. Steamship Co., 20 Wall. 387; Re Manning, 44 Fed. R. 275.

18 In re Acker, 66 Fed. R. 290.
§344. Fischer v. Hayes, 6 Fed. R.63.
2 Fischer v. Hayes, 6 Fed. R. 63.
3 Re Mullee, 7 Blatchf. 23.

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63 Fed. R. 1001). It has since been held by the same court that such an order cannot be reviewed by writ of error. Nassau El. R. Co. v. Sprague El. N. Y. & M. Co., 95 Fed. R. 415, which follows In re Debs, 158 U. S. 564, 573. See, however, In re Spofford, 62 Fed. R. 443. The Supreme Court has refused to review by writ of error the judgments of a State court denying an application to punish a party for contempt, where it was claimed that

4 Matter of Marsh, MacA. & M. the obligation of a contract was im

(D. C.) 32.

5 Hayes v. Fischer, 102 U. S. 121. It was held by the Circuit Court of Appeals for the Second Circuit that under the Evarts Act such an order could be reviewed by writ of error (Gould v. Sessions, 67 Fed. R. 163; Butler v. Fayerweather, 91 Fed. R. 458); but not by appeal (Sessions v. Gould,

paired by such denial. Newport Light Co. v. Newport, 151 U. S. 527. 6 Ex parte Fisk, 113 U. S. 713; Ex parte Terry, 128 U. S. 289. See § 366, 367, infra.

7 Savin, Petitioner, 131 U. S. 267, 279; Stevens v. Fuller, 136 U. S. 468, 478. See SS 366, 367, infra.

8 In re Tyler, 149 U. S. 164; In re

Upon an appeal from the final decree so much of an order fining a party for contempt as gave indemnity to his antag onist may be reviewed, but not so much of the fine as was imposed solely by way of punishment to vindicate the dignity of the court.10 A prisoner committed for a contempt is not entitled to any credit for good behavior."

§ 345. Writ of attachment.- An attachment is a writ directed to the marshal of the court, sealed and bearing teste in the same manner as a writ of subpoena,1 directing him to attach the body of the person named therein, and to safely keep the same, so that he can produce the person or persons thus attached in court at a certain day termed the return day of the writ, or until the further order of the court. The writ must be indorsed with the special reason for which it is issued, and also with the name and address of the solicitor of the party issuing it. The writ may be issued either in vacation or in term; and may be returnable immediately; provided, at least, that the party against whom it is issued then dwells or is within twenty miles of the place of holding the court. Otherwise, a period of fifteen days between the teste and the return might be required.*

§ 346. Execution of writ of attachment. The first thing to be done after the writ has been issued is to deliver it to the marshal to whom it is directed, or to one of his deputies authorized by him to receive such writs. Although the writ is always directed to the marshal of the judicial district within which it is to be executed,2 it is usually executed by one of his deputies. The marshal and his deputy can only execute the writ within the district for which he has been appointed; and not then against a person who has been brought there by force or fraud, or under such circumstances as would make it improper to serve a subpoena upon him; and probably not upon

Lennon, 150 U. S. 393; In re Swan, 150 U. S. 637; infra, § 366.

9 Worden v. Searls, 121 U. S. 14, 26. 10 New Orleans v. Steamship Co., 20 Wall. 387.

11 In re Terry, 37 Fed. R. 649. § 345. See U. S. R. S., § 911. 2 Braithwaite's Pr. 159-161.

3 Braithwaite's Pr. 159.

4 Acts of 11 Geo. IV. and 1 Wm. IV., ch. 36, § 15, note 3.

§ 346. U. S. R. S., § 787.
2 U. S. R. S., § 787.

U. S. R. S., § 787; In the Matter of
Allen, 13 Blatchf. 271; Voss v. Luke,

1 Cranch, C. C. 331; Sommerville v. French, 1 Cranch, C. C. 474.

4 In the Matter of Allen, 13 Blatchf

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Sunday, nor usually in the court-room. If a writ is to be executed in a different district from that within which the court issuing it is situated, it should be directed to the marshal of that district. This has been held proper, when the writ issues to attach, for disobedience to a subpoena, a witness who lives within a hundred miles of the place of holding the court. It has been held that in other cases this cannot be done; but that, on presentation of a certified copy of the contempt proceedings and of the writ of attachment, the district attorney of the district where the delinquent is, may obtain from a commissioner of that district a warrant for the arrest of the party in contempt, who is then entitled to an examination, pending which he may be discharged on bail; and that if the commissioner decides to hold the party in contempt, the judge of that district may issue a warrant for his removal as in other criminal cases.10 If the delinquent be already in custody, either upon criminal sentence or civil process, no further arrest is necessary; but the marshal should give notice of the attachment, which notice is called a detainer, to the keeper or jailer in whose custody he is." If a return day be appointed in a writ, and it be issued to enforce obedience to an interlocutory order, the marshal may, but is not obliged to, allow the delinquent to go at large with or without security for his surrender to him. upon the return day.12 If the delinquent do not then surrender himself to the marshal's custody, the latter and his bondsmen are responsible for all damages which the court shall determine have resulted therefrom to the party at whose instance the writ was issued. It seems, however, that this cannot be done when the writ is issued for a refusal to perform a specific act in obedi

271. And see authorities cited under SS 98, 277. Cf. Wroe v. Clayton, 16 Simons, 183.

But see Henry v. Ricketts, 1 Cranch,
C. C. 580.

9 Ex parte Graham, 3 Wash. C. C. 529 Car. II, ch. 12, § 6. And see au- 456, 462; Re Manning, 44 Fed. R. 275. thorities cited under § 84.

6 U. S. v. Scholfield, 1 Cranch, C. C. 130; Davis v. Sherron, 1 Cranch, C. C. 287.

7 Voss v. Luke, 1 Cranch, C. C. 331; Sommerville v. French, 1 Cranch, C. C. 474.

10 U. S. v. Jacobi, 4 Am. L. T. R. 148, 151, 152; Re Manning, 44 Fed. R. 275.

11 Trotter v. Trotter, Jacob, 533. 12 Morris v. Hayward, 6 Taunt. 569; Studd v. Acton, 1 H. Blk. 468.

13 Moore v. Moore, 25 Beav. 8; U. S.

8 Voss v. Luke, 1 Cranch, C. C. 331. R. S., §§ 783-786.

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