Jackson v. Smith , 5 Johns. 115 ( 1809 )

Per Curiam.

The court of common pleas discharged Brown upon the supposition, that he was in custody after a conviction of a contempt, for not paying the costs of the action in ejectment, pursuant to the stipulation in the consent rule. In this they were mistaken. The attachment, by virtue of which he had been arrested, was nothing more than a process to bring him into court, to answer the interrogatories which, upon the return of it, Were to be exhibited against him. This is necessary to be done in every case, before a party can be convicted of a contempt. If the answers to the interrogatories show that no contempt has been committed, the party is entitled, at law, to his discharge; but if the contempt be admitted, .the court proceed to pronounce such judgment as the circumstances of 'the case may require. If he is ordered to be committed, then, and not before, is he in custody upon a conviction. (4 Bl. Com. 483.) The court of common pleas, therefore, interfered prematurely, and their discharge is void.

'J’he plaintiff is entitled to judgment.

Judgment for the plaintiff.