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Art. 19

Contempts.

88 770_773

or appears upon the return of a warrant, the court, judge, or referee, must, unless he admits the offense charged, cause interrogatories to be filed, specifying the facts and circumstances of the offense charged against him. The accused must make written answers thereto, under oath, within such reasonable time as the court, judge, or referee allows therefor; and either party may produce affidavits, or other proofs, contradicting or corroborating any answer. Upon the original affidavits, the answers, and subsequent proofs, the court, judge, or referee must determine whether the accused has committed the offense charged.

Formerly Code Civil Procedure, § 2280. § 770. Final order directing punishment. If it is determined that the accused has committed the offense charged; and that it was calculated to, or actually did, defeat, impair, impede, or prejudice the rights or remedies of a party to an action or special proceeding, brought in the court, or before the judge or referee; the court, judge, or referee must make a final order accordingly, and directing that he be punished by fine or imprisonment, or both, as the nature of the case requires. A warrant of commitment must issue accordingly.

Formerly Code Civil Procedure, g 2281. 8 771. Punishment upon return of habeas corpus. Where the accused is brought up by virtue of a writ of habeas corpus, he must, after the final order is made, be remanded to the custody of the sheriff, or other officer, to whom the writ was directed. If the final order directs that he be punished by imprisonment, or committed until the payment of a sum of money, he must be so imprisoned or committed, upon his discharge from custody under the mandate, by virtue of which he is held by the sheriff, or other officer.

Formerly Code Civil Procedure, $ 2282. 8 772. Punishment apon return of order to show cause. Upon the return of an order to show cause, the questions which arise must be determined, as upon any other motion; and, if the determination is to the effect specified in the last section but one, the order thereupon must be to the same effect as the final order therein prescribed. Upon a certified copy of the order so made, the offender may be committed, without further process.

Formerly Code Civil Procedure, $ 2283. 8 773. Amount of fine. If an actual loss or injury has been produced to a party to an action or special proceeding, by

88 774–776

Contempts.

Art. 19

reason of the misconduct proved against the offender, and the case is not one where it is specially prescribed by law, that an action may be maintained to recover damages for the loss or injury, a fine, sufficient to indemnify the aggrieved party, must be imposed upon the offender, and collected, and paid over to the aggrieved party, under the direction of the court.

The payment and acceptance of such a fine constitute a bar to an action by the aggrieved party, to recover damages for the loss or injury. Where it is not shown that such an actual loss or injury has been produced, a fine must be imposed, not exceeding the amount of the complainant's costs and expenses, and two hundred and fifty dollars in addition thereto, and must be collected and paid, in like manner. A corporation may be fined as prescribed in this section.

Formerly Code Civil Procedure, $ 2284. § 774. Length of imprisonment. Where the misconduct proved consists of an omission to perform an act or duty, which it is yet in the power of the offender to perform, he shall be imprisoned only until he has performed it, and paid the fine imposed. In such a case, the order, and the warrant of commitment, if one is issued, must specify the act or duty to be performed, and the sum to be paid. In every other case, where special provision is not otherwise made by law, the offender may be imprisoned for a reasonable time, not exceeding six months, and until the fine, if any, is paid; and the order, and the warrant of commitment, if any, must specify the amount of the fiue, and the duration of the imprisonment.

Formerly Code Civil Procedure, f 2285. 8 775. When court may release offender. Where an offender, imprisoned as prescribed in this article, is unable to endure the imprisonment, or to pay the sum, or perform the act or duty, required to be paid or performed, in order to entitle him to be released, the court, judge, or referee, or, where the commitment was made as prescribed in section twenty-four hundred and fifty-seven of the code of civil procedure, the court, out of which the execution was issued, may, in its or his discretion, and upon such terms as justice requires, make an order, directing him to be discharged from the imprisonment.

Formerly Code Civil Procedure, $ 2286. 8 776. Offender liable to indictment.

A person, punished as prescribed in this article, may, notwithstanding, be indicted for the same misconduct, if it is an indictable offense;

Art. 19

Contempts.

88 777–780

but the court, before which he is convicted, must, in forming its sentence, take into consideration the previous punishment.

Formerly Code Civil Procedure, $ 2287. 8 777. Proceedings when accused does not appear. Where a person, arrested by virtue of a warrant of attachment, has given an undertaking for his appearance, as prescribed in this article and fails to appear, on the return day of the warrant, the court may either issue another warrant, or make an order, directing the undertaking to be prosecuted; or both.

Formerly Code Civil Procedure, $ 2288. 8 778. Prosecution of undertaking by person aggrieved. The order directing the undertaking to be prosecuted, may, in the discretion of the court, direct the prosecution thereof, by and in the name of any party aggrieved by the misconduct of the accused. In such a case, the plaintiff may recover damages, to the extent of the loss or injury sustained by him, by reason of the misconduct, together with the costs and expenses of prosecuting the special proceeding in which the warrant was issued; not exceeding the sum specified in the undertaking.

Formerly Code Civil Procedure, $ 2289. $ 779. Prosecution of undertaking by attorneygeneral or district attorney. If no party is aggrieved by the misconduct of the accused, the order must, and, in any case where the court thinks proper so to direct, it may, direct the prosecution of the undertaking, by the attorney-general, or by the district attorney of the county in which it was given, in the name of the people. In an action, brought pursuant to the order, the people are entitled to recover the entire sum, specified in the undertaking. Out of the money collected, the court, which directed the prosecution, must direct that the person, at whose instance the warrant was issued, be paid such a sum as it thinks proper, to satisfy the costs and expenses incurred by him, and to compensate him for any loss or injury sustained by him, by reason of the misconduct. The residue of the money must be paid into the treasury of the state.

Formerly Code Civil Procedure, $ 2290. $ 780. Sheriff liable for taking insufficient sureties. After the return of an execution, issued upon a judgment, rendered in an action upon the undertaking, an action, to recover the amount of the judgment, may be maintained against the sheriff, where it appears that, at the time when the undertaking was given, the sureties were insufficient, and the sheriff had reasonable grounds to doubt their sufficiency. Such an action may be

$$ 781, 790

Collection of Fines.

Arts. 19, 20

maintained by the plaintiff, in whose favor the judgment was recovered. If the people were plaintiffs, the action must be prosecuted by the attorney-general or the district attorney; and any money collected therein must be disposed of, as prescribed in the last section.

Formerly Code Civil Procedure, $ 2291. § 781. Punishment of misconduct at trial term. Where a misconduct, which is punishable by fine or imprisonment, as prescribed in this article, occurs at a trial term, or with respect to a mandate returnable at such term, and was not punished at the term at which it occurred, the supreme court may inquire into and punish the misconduct, as if it had occurred at a special term of the supreme court, held in the same county, or with respect to a mandate returnable at such a special term.

Formerly Code Civil Procedure, $ 2292.

ARTICLE 20

Collection of Fines
Section 790. Clerk to make schedule of fines imposed.

791. Issue and contents of warrant.
792. Execution of warrant.
793. Return of warrant.
794. Proceedings if fine not collected.
795. Who to be included in schedule annexed to warrant.
796. Liability of sheriff for omission of duty.

797. Application of article. § 790. Clerk to make schedule of fines imposed. Where a fine has been imposed by a court of record, upon a grand or trial juror, or upon any officer or other person, without being accompanied with an order for the immediate commitment of the person so fined, until the fine is paid, the clerk of the court, immediately after the close of the term at which the fine was imposed, must prepare a schedule, containing, in separate columns, the following matters :

1.. The name of each person fined.

2. His place of residence, where it appears, from the papers on file or before the court, to be within the county.

3. The amount of the fine imposed upon him. 4. The cause for which the fine was imposed.

The clerk must subjoin to the schedule a certificate, to the effect, that it contains a true abstract of the orders imposing fines, and must annex it to the warrant specified in the next section.

Formerly Code Civil Procedure, $ 2293.

Art. 20

Collection of Fines.

88 791-794

$ 791. Issue and contents of warrant. The clerk must immediately issue a warrant, under the seal of the court, directed to the sheriff of the county, and commanding him to collect from each of the persons named in the schedule annexed to the warrant, the sum therein set opposite that person's name; and to pay over the sum collected to the treasurer of the county. The warrant is the process of the court, by which the fines were imposed. If a delinquent resides in another county, a separate warrant, for the collection of the fine imposed upon him, with an appropriate schedule annexed thereto, must be issued, in like manner, to the sheriff of the county where he resides.

Formerly Code Civil Procedure, $$ 2294, 2295. $ 792. Execution of warrant. The sheriff to whom a warrant is issued, must collect each fine out of the personal property of the person fined, as prescribed in chapter thirteenth of the code of civil procedure, for the collection, by levy upon and sale of personal property, of an execution issued out of a court of record; and he is entitled to like fees thereupon. If sufficient personal property of a delinquent can not be found to pay the fine and the fees, the sheriff must arrest the delinquent, and detain him in custody until he pays the same, as upon an execution against the person, issued in an action, out of the supreme court; and he is entitled to like fees thereupon.

Formerly Code Civil Procedure, $ 2296. $ 793. Return of warrant. The sheriff must return the warrant, with his proceeding thereupon, at the term of the court; or, where the fine was imposed, in any county except New York, by the supreme court, or the county court at the term of the county court; held next after the expiration of sixty days from the receipt thereof. If he fails to do so, the district attorney must take the same proceedings to compel a return, as may be taken by a judgment creditor, where a sheriff omits to return an execution, issued out of the supreme court.

Formerly Code Civil Procedure, $ 2297. 8 794. Proceedings if fine not collected. Where it appears, by the return, that a fine remains uncollected, and it does not appear that the sheriff has the delinquent in custody, the district attorney must, if he has good reason to believe that the sheriff might, with due diligence, have collected the fine, or arrested and detained the delinquent, coinmence an action against the sheriff, in the name of the people. Otherwise he must direct the clerk to issue a new warrant, or to include the fine in the schedule, annexed to the rest warrant, to be issued by him. A new warrant may, from time to time, be issued, or the fine may

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