Adams v. Haskell & Woods

         1. Certiorari will not lie.

         It lies only where there has been an excess of jurisdiction; and here it cannot be denied but that the Court had full jurisdiction of the subject-matter presented by the motion, and of the parties also.

         Practice Act, Sec. 456. " The writ shall be granted in all cases when an inferior tribunal has exceeded its jurisdiction and there is no appeal, nor in the judgment of the Court, any plain, speedy, and adequate remedy."

         Sec. 463. " The review upon the writ shall not be extended further than to determine whether the inferior tribunal has regularly pursued the authority of such tribunal."

         Here, at the worst, there was error merely, it being manifest there was no usurpation, and for that, appeal is the only appropriate mode of redress.

         Thatwas the mode adopted in Lucas, Turner & Co. v. Allen, April Term, 1855.

         2. But there was not only no usurpation, but the record discloses no error.

         They may say, however, that it appears by Cohen's affidavit, p. 23, that he has not got the $ 10,000 in his possession, and is unable to pay over.

         It is a matter of no moment whether he has the specific $ 10,000 received by him or not.

         If he has parted with the specific coin, the question arises, was he presently unable to replace it.

         That he does not pretend, and the Court was, therefore, at liberty to assume that he was laboring under no such inability.

         JUDGES: The opinion of the Court was delivered by Mr. Chief Justice Murray. Mr. Justice Terry concurred.

         OPINION

          MURRAY, Judge

         In this case, the Court exceeded its jurisdiction in ordering the party to be imprisoned until he paid into Court certain moneys, paid to him for fees, and disbursements made to him.

         The affidavit of the party is uncontradicted, and shows that he has complied, as far as possible, with the order of the Court, and that it is not in his power to comply further. This is a sufficient expurgation, and the order directing his imprisonment was, under these circumstances, an excess of jurisdiction, and void.

         While we admit that Courts are the exclusive judges of their own contempts, still, by our statute, a party cannot be imprisoned for neglecting or refusing to perform an act, where it appears that it is not in his power to perform the same. See Lucas v. Allen, Cal. S.Ct. April T. 1855 (not reported).

         Order reversed.