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Chipman vs. Barron.

certiorari." Prince 910, Const. art. 3, sec. 1. The Judiciary Act of 1799, in providing for the exercise of this power declares, that "where either party in any cause, in any Inferior Court, shall take exceptions to any proceedings in any case affecting the real merits of such cause, the party making the same, shall offer such exceptions in writing, which shall be signed by himself or his attorney; and if the same shall be overruled by the Court, it shall and may be lawful for such party, on giving twenty days notice to the opposite party or his attorney, to apply to one of the Judges of the Superior Court, and if such Judge shall deem the said exceptions to be sufficient, he shall forthwith issue a writ of certiorari, &c.; and said Superior Court shall determine thereon and order the proceedings to be dismissed, or return the same to the said Inferior Court, with order to proceed in the said cause." Prince 432. With the view of the character of this proceeding which we have presented, and under the broad grant of corrective powers conferred upon the Superior Court under the Constitution and the Act of 1799, we are satisfied that the Court below did right in refusing to dismiss the writ of certiorari.

We however, are compelled to differ from the Court below on the second assignment of error. The power of the Inferior Court to vacate its solemn judgment, rendered in due course of law upon suit brought, upon the ground that it had misapplied or misapprehended the law, upon motion, may be well questioned, and is not asserted by this Court. The old common law writ of audita querela would not relieve in such a case, nor a writ of error coram nobis, nor a motion to arrest. The ground for annulling this order absolute, is not irregularity in the proceeding, or fraud; if it were the latter, equity might relieve. As before stated, the ground taken by the Inferior Court as appears from the return to the certiorari, is that the "rule absolute was granted improperly and illegally; because said Chipman was not in contempt of court, having taken a bond with good security for the forthcoming of the property, on the filing of the affidavit of illegality, as he was required by law to do." We do not consider the annulled order in the light of such a judgment, and therefore the law as applicable to an act vacating such a judgment, does not apply as we conceive to this case.

The Court below admits the power of the Inferior Court to have reviewed their order during the term, at which it was passed, but thinks that the power of review ceased with the term. This we suppose is simply asserting the power incident to all courts of

Chipman vs. Barron.

record, of correcting their records before they are made up and signed; and to this proposition there can be no objection. We however claim for the Court, the power to review and annul this order at a subsequent term. Nor do we perceive that any valid objection to it grows out of the state of the record, after the rescinding order is passed. The record of a cause does not necessarily consist of the action of the Court at any one term, but may be constituted of a series of actions in the same cause, at different terms. The whole record is to be taken together; one part explaining another. Thus a judgment may be obtained upon the final hearing on appeal and the record of the term closed, and still at a subsequent term, if there be sufficient cause, it may be arrested. We do not see that so far as the record is concerned, this cause differs materially from that.

The Court is further represented, in the bill of exceptions, as ruling (and here we take occasion to regret that this Court cannot always have the opinion of the Court below more fully presented than it usually is, for we are conscious that our opinions wear the appearance sometimes of doing less than justice to the decision which it is our duty to review,) that the Inferior Court exceeded its power in revoking the rule absolute at a subsequent term, so far as the revocation affected the rights which the plaintiff acquired under it. So far as rights had vested in Wilie Barron, under that rule, we agree with the Court, that they could not be divested by its revócation. That he did settle with Chipman by taking his note, with security for the debt, is averred in his petition for the certiorari.

But the return does not show that this averment is true or false, We must consider that as a fact not established. And if it was we would not then be called upon to give any opinion as to whether that settlement vested any rights in the plaintiff, and as to the effect which the revocation of the order would have upon the right of the plaintiff to recover upon Chipman's note. We would leave those questions to be determined by the court before which they might be raised. Aside from these considerations, we cannot see that there was any right of property, or of franchise vesting in the plaintiff by virtue of this rule absolute, like that vested right which is held by jurists every where to be irrevocable, and with which neither the Judiciary nor the Legislature can interfere. Before proceeding further, we may state at once that, in our judgment, the Court had the power to annul this order, by virtue of that discretion and control which courts of record may exercise over contempts. That they have

Chipman vs. Barron.

such discretion, is conceded throughout all the learning upon this subject, from the time of Lord Bacon to this day. The discretion to declare an officer in contempt or not, involves the power to annul the judgment or declaration that he is in contempt, otherwise how shall a party in contempt ever purge the contempt. We admit that the discretion is to be exercised according to law, to some extent; but we do not admit that every act which the court may do, or omit to do, is ascertained by a legal rule; something must be left to the exercise of the best judgment of the court, guided by justice, under the various phases which a case of contempt may assume. We do not mean to say that this discretion extends to the determination of what are or are not contempts; we mean to confine the use of the word to the action of the court in declaring a contempt, permitting it to be purged, and removing or relieving against the punishment of it. We may safely say that, in the law which limits or restrains the discretion referred to, there is not to be found a principle which inhibits a court from annulling an order declaring a contempt against its officer, when it is made to appear to that court that the officer is not and had not been in contempt. That this officer was not in contempt when the rule absolute was passed is obvious, nay palpable. It was his duty to receive the illegality, and it was likewise his duty to receive the bond, and to deliver the property levied upon to the defendant. The bond is given for the benefit of the plaintiff-his security was in that—and had the Sheriff refused to deliver the property, upon a tender of the bond, he would have been liable to the defendant. Acts of 1838, Pamph. page 145. How, then, could he have been in contempt, when his return showed that the illegality had been filed, and bond given, and that the property had not been returned to him. The Inferior Court misjudged the law of the case, and declared the Sheriff in contempt; this being the case we think it was within their power, and certainly their duty, to place the Sheriff in the condition he was in before the order was passed; this they could do only by revoking the order, the effect of which was to remit the plaintiff also to the rights and remedies which he had before the order was passed. Even in cases where the court has issued its penal process, and the officer is committed, where he is in execution at the instance of a plaintiff under an attachment, and where the commitment might be with plausibility claimed as the plaintiff's satisfaction, even in such cases the officer has been considered within the provisions of the insolvent laws. A surrender of all his effects

Chipman vs. Barron.

being considered as a purgation of the contempt. And in such cases, upon such surrender, it has been held, that the officer might be discharged upon motion. This is not one of those cases, but a much stronger case, in this, that here there was no commitment, no attachment issued, but only the preliminary judgment, that the Sheriff was in contempt, and an order giving time to pay the money. See the authorities before cited, also Bacon's Ab. Title Courts, E; 1 B. & Ald. 192; Barnes, 11; 10 Bingham, 434; 3 Paige, 40, 41, 42; 1 Hill N. Y. R. 171; 7 T. R. 156; 3 Desaussure R. 269; 4 McCord, 237. "Even in cases (says Sewell) where the proceedings are perfectly regular, and have been properly commenced and continued, the courts exercise a discretionary power to stay them on terms." Sewell's Law of Sheriff, page on the margin, 422.

The case ex parte Thurmond, 1 Bailey, 605, which I have before referred to, is considered by this Court as sustaining the grounds which they have taken. That was a case where the Sheriff had been ruled to pay over money collected on a fi. fa. and committed under an attachment for contempt. He filed his schedule and asked to be discharged under the insolvent laws of South Carolina; he was opposed upon the ground that a Sheriff committed to jail under an attachment for a contempt, is not entitled to the benefit of the insolvent laws. The Circuit Court discharged him and an appeal was taken. The same grounds were taken before the Appeal Court against his discharge; the Court held that he was entitled to a discharge under the insolvent laws of Carolina and sent the case back with instructions. O'Neall, J. in delivering the opinion of the Court says, "in the present case we are untrammeled by precedent, and the Court concludes that where the Sheriff shows that he is unable through poverty or misfortune to put the party procuring the attachment, in as good a situation as he would have been in, had he done his duty, and he has returned the execution, he might be discharged under the discretionary power of the Court over all cases of contempt." They however thought it best in that case to let the discharge be effected by the usual course under the bankrupt laws.

In the case of the People vs. Nevins, 1 Hill N. Y. R. 171, Nevins was ruled to pay money collected as an attorney before the Supreme Court of New York, and committed to jail under an attachment for contempt. A commissioner for the county of Erie discharged him by writ of habeas corpus, and his action was brought before the Supreme Court of New York by writ of certiorari.

Chipman vs. Barron.

The Court reversed the order of discharge for want of jurisdiction in the commissioner, and in delivering the opinion of the Court, Cowen, J. says: "and if the imprisonment were not warrantable, we would have discharged the prisoner on motion."

Under such a view as we have now given of the discretionary power of the Inferior Court over contempts, we return to the inquiry, what right or interest vested in the plaintiff in this order absolute?

Upon the supposition that the Sheriff did neglect his duty; the plaintiff is injured, he is placed by the default of the officer in a worse condition than he would have occupied, if he had done his duty; the default is at the same time a contempt of the authority of the Court; the plaintiff comes then into court and suggesting the contempt, invokes the power of the Court over the contempt to redress the wrong done him. The right of invoking that power does not divest the Court of its discretion; that continues, and so long as it is exercised in furtherance of the plaintiff's interest, there can be no conflict between him and the Court. But when that discretion does not subserve his views there is a conflict- and which shall yield! The discretion of the Court or the supposed, or actual interest of the plaintiff? The latter, or otherwise the Court has no discretion; it becomes, like its process, but the agency by which the plaintiff collects his money. And right or wrong, whether in contempt or not, a process for contempt, is used to compel the Sheriff upon pain of perpetual imprisonment, to pay to him the amount of his judgment against a third person. And suppose it turns out, as it did in this case, that the Sheriff is not in contempt; then the very contingency upon which the law makes him liable to the plaintiff, fails, and if the Court cannot prevent it, he recovers against him without law and without equity. We conclude then that all the right which the plaintiff had under this order absolute, was the right, subordinate to the power of the Court to annul it, to ask and have the process of attachment to enforce the payment of the money, and when it was annulled that right fell to the ground. And why (in this case the record showing that the Sheriff was not in contempt,) should he (plaintiff) complain? the revocation of the order remits him to the position, which whether good or bad, the law gave him before it was passed. He still has his judgment unimpaired, and the bond with security which the defendant gave for the forthcoming of the property. We do not believe therefore, that any argument against the power

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