be approved by the clerk of this court, and upon failure to file said bond with said surety, approved by the clerk of this court, the said Harry Oster to stand committed to the county jail for such contempt, and the said commitment to stand until said bond is given."

Oster was represented by Mr. Silber, an attorney, in the matter relating to the management of the receivership, but other counsel, Mr. Myer S. Emrich, was given in charge of the defense of the charge of contempt against him. On the said 10th day of August said Oster, accompanied by his counsel, Mr. Emrich, appeared before the judge of said court judicially sitting who presided when said order was entered, and filed an answer denying in detail the truth of the alleged facts set forth in the order as constituting the charge of contempt against him and directing that he be attached to answer as for contempt. The answer was verified by his oath. Counsel for said Oster read the answer to the court. The court thereupon announced that he would hold said Oster under bail to answer for perjury committed in the answer. The court then proceeded to comment on the testimony which had been given on the hearing on the issues made under the petition filed by said Reynolds & Reynolds Company and others, and concluded by announcing that he adjudged said Oster to be guilty of contempt of court, and sentenced him to be confined in the county jail for four months and to pay a fine of $300, and stand committed until the fine was paid. The sentence so orally pronounced was entered of record in an order entered in a cause styled "People of the State of Illinois v. Harry Oster et al.-Proceeding for contempt." The substance of the order is that Oster is adjudged to be guilty of contempt, and ordered to be imprisoned in the common jail of Cook county for four months and to pay a fine of $300, and to stand committed to the county jail until said fine is paid. A writ of error was sued out of the Appellate Court for the First District to reverse this order and judg

ment, but the judgment of the Appellate Court was adverse to the plaintiff in error. The correctness of said

judgment of affirmance is now before us for review.

The answer explicitly denied the general charge set forth in the order of the court directing Oster to be attached, and denied in detail other matters brought out in the hearing of the petition filed by the creditors. No interrogatories were filed to which more specific answers could have been required, as might have been done if the answer was not regarded as sufficiently definite as to the factum of the contempt. (4 Ency. of Pl. & Pr. 796.)

The answer, if true, acquits said Oster of the charge. of contempt. The trial judge acted on the theory it was competent, on the hearing of the attachment for contempt, to consider the testimony which had been given before him on the hearing of the issues made under the petition of said Reynolds & Reynolds Company and others, as in denial of the answer or as original evidence in support of the charge of contempt, and adjudged such testimony warranted the judgment convicting Oster of the charge of contempt. The alleged acts of contempt occurred, if at all, out of the presence of the court. The purpose of the proceeding for contempt was not to enforce any act for the benefit of the creditors of the said firm or advance the private rights of any such creditor, but to vindicate the authority and dignity of the court. The proceeding was punitive and for the purpose of punishing Oster. The penalty was not as a means to the end that Oster should be compelled to do or omit to do some act, but as punishment to him for an act already charged to have been done. The proceeding was criminal in its nature, was independent and distinct from the chancery proceeding in which Oster was appointed receiver, and also from the intervening petition filed in that proceeding by said Reynolds & Reynolds Company and others to recover the goods alleged to have been surreptitiously removed from the custody of the receiver. It should have been, as it

was, prosecuted in the name of the People of the State of Illinois. 2 Bishop on Crim. Law, sec. 269; Lester v. People, 150 Ill. 408.

As a general rule, an attachment for contempt alleged to have been committed out of the presence of the court should be based upon an affidavit as to the truth of the facts constituting the alleged contempt. (4 Ency. of Pl. & Pr. 779.) But we do not think an affidavit was essential to the jurisdiction of the court to require Oster to show cause in this instance. The court, in the course of the hearing of the petition of the Reynolds & Reynolds Company against Oster, heard sworn testimony given in open court which constituted a sufficient foundation on which to found a charge as for contempt and to award the process of attachment necessary to bring Oster before the court in order the charge might be judicially heard and determined. (4 Ency. of Pl. & Pr. 776, 780.) The court, in the order entered August 8 directing the said Oster to appear August 10, (the day fixed for the hearing of the charge of contempt against him,) set forth the facts constituting the charge so fully that the said Oster was advised, in a general way, at least, of what he would be called upon to meet and answer. Oster was present in court when this order was entered, and there was no necessity the process of attachment should issue against him. (Ex parte Petrie, 38 Ill. 498.) The court had ample power to require him to give bail for his appearance on the 10th day of August,-the day fixed for the hearing of the charge against him. He appeared on that day and filed an answer, verified by his oath, which, standing alone, purged him of the alleged contempt and constituted a full defense to the charge of contempt alleged to have been committed out of the presence of the court. The proceeding for contempt was not for the purpose of enforcing any order of the court or in aid of any civil remedy for the benefit of any injured party. The goods which had been removed from the store house occupied

by the receiver had been restored, and the only purpose of the attachment was to punish Oster for his alleged participation in the removal of the goods. The proceeding was criminal-not remedial-in character. In criminal contempts alleged to have been committed out of the presence of the court, if the contemnor's answer is sufficient to acquit of the charge he must be discharged. (Crook v. People, 16 Ill. 534; Buck v. Buck, 60 id. 105; People v. Diedrich, 141 id. 665; 4 Ency. of Pl. & Pr. 795.) The proceeding against Oster is criminal or quasi criminal in character, and independent and distinct from the chancery proceeding under which he was appointed receiver or that instituted by the Reynolds & Reynolds Company and others by intervening petition in such chancery proceeding. It was a distinct and independent proceeding in behalf of the People of the State of Illinois to punish him for an alleged wrongful act done in defiance of the authority and dignity of a judicial tribunal created and existing by virtue of the constitution and laws of the State. (See additional opinion in Lester v. People, supra.) It was correctly docketed in the trial as an independent and distinct cause from the chancery proceeding, and was properly prosecuted by and in the name of the People of the State of Illinois.

The evidence which had been produced before and heard by the chancellor in the cause in equity was not introduced in the hearing of the contempt case and could not be considered by the court as overcoming the sworn answer filed by Oster, even if it had been competent to controvert his answer. Oster should have been discharged on his answer.

The judgment must be and is reversed.

Judgment reversed.

CHRISTINA BUCHANAN et al.

v.

JOHN MCLENNAN,

Opinion filed October 24, 1901.

WILLS-parties electing to take under will must accept it in its entirety. Parties electing to take under a will cannot insist that the provisions in their favor shall be executed while those to their prejudice shall be annulled.

APPEAL from the Circuit Court of Stark county; the Hon. LESLIE D. PUTERBAUGH, Judge, presiding.

This is a bill in chancery filed by Finley McLennan, Christina Buchanan, Mary A. Matheson, Rebecca McLean and Margaret Finlayson, the son and daughters of Barbara McLennan, deceased, against John McLennan, the only child of Duncan McLennan, deceased, (a son of said Barbara McLennan, who died intestate in the year 1880,) in the circuit court of Stark county, for the partition of 34.43 acres of land situated in said county, and described as the north half of lot No. 2, of the south-west quarter of section No. 19, in township No. 14, north, range 6, east, in said county. The defendant answered, averring that he was the absolute owner of said land, and denying that the complainants were entitled to the relief prayed for. A replication was filed and the cause referred to the master in chancery of said court to take proofs and report his conclusions. The master found in favor of the complainants, and the circuit court sustained exceptions to his report and entered a decree dismissing the bill for want of equity, from which decree all of the complainants, with the exception of Margaret Finlayson, have prosecuted an appeal to this court.

The land in question was entered in the name of Barbara McLennan on the first day of January, 1850, she at that time being the wife of John McLennan. On the 7th day of June, 1859, she joined with her husband in a war