but only such matters as may be explained or avoided by a reply, the Court may, in its discretion, grant time for replying. If the answer, or answer and reply, raise only questions of law, or put in issue immaterial statements, not affecting the substantial rights of the parties, the Court shall proceed to hear, or fix a day for hear ing, the argument of the case. § 477. If the applicant succeed, he may have damages, costs, and a peremptory mandate. If judgment be given for the applicant, he shall recover the damages which he shall have sustained, as found by the jury, or as may be determined by the Court, or referees, upon a reference to be ordered, together with costs; and for such damages and costs an execution may issue; and a peremptory mandate shall also be awarded without delay. § 478. Service of the writ. The writ shall be served in the same manner as a summons in a civil action, except when otherwise expressly directed by order of the Court. § 479. Penalty for disobedience to the writ of mandate. When a peremptory mandate has been issued and directed to any inferior tribunal, corporation, board, or person, if it appear to the Court that any member of such tribunal, corporation, or board, or such person, upon whom the writ has been personally served, has, without just excuse, refused or neglected to obey the same, the Court may, upon motion, impose a fine not exceeding one thousand dollars. In case of persistance in a refusal of obedience, the Court may order the party to be imprisoned for a period not exceeding three months, and may make any orders necessary and proper for the complete enforcement of the writ. If a fine be imposed upon a Judge or officer who draws a salary from the State or county, a certified copy of the order shall be forwarded to the Comptroller, or County Treasurer, as the case may be, and the amount thereof may be retained from the salary of such Judge or officer. Such Judge or officer, for his willful disobedience, shall also be deemed guilty of a misdemeanor in office. TITLE XIII.* OF CONTEMPTS AND THEIR PUNISHMENT. SEC. 480. Contempts, what shall be deemed. 481. A contempt committed in the presence of the Court may be punished summarily; when not so committed, an affidavit or statement shall be made. 482. A warrant of attachment to answer may issue, or notice to show cause. 483. Bail may be given by a person arrested under such warrant. 484. Sheriff shall, upon executing the warrant, arrest and detain the person until discharged. 485. Bail bond, form and condition of. 486. Office shall return warrant and bail bond, if any. 488. Judgment and penalty if guilty. 489. If the contempt is the omission to perform any act, 491. If the party fail to appear, proceedings. * STATUTES OF 1862, 115. An Act for the Punishment of Contempts and Trespasses. SECTION 1. Every person who shall have been, or shall be hereafter, dispossessed or ejected from, or out of, any piece, parcel, lot, or tract, of land, by the judgment, decree, or process, of any Court of competent jurisdiction, and who, not having legal right so to do, shall reenter into, or upon, or take possession of, any such land, or any part thereof, or induce, or procure, any person, not having legal right so to do, or shall aid or abet him therein, shall be deemed guilty of a contempt of the Court by which such judgment or decree was rendered, or from which such process issued, and shall be tried and punished therefor, in the same manner and form as now provided by law, in case of contempt not committed in presence of the Court or Justice of the Peace. SEC. 2. Upon a conviction for such contempt. the Court, or Justice of the Peace, shall immediately issue an alias process, directed to the proper officer, and requiring him to restore the party entitled to the possession of such property, under the original judgment, decree or process, to such possession of which he shall have been dispossessed by the wrongful conduct or act herein declared to be a contempt. § 480. Contempt, what shall be deemed. The following acts or omission shall be deemed contempts: 1st. Disorderly, contemptuous, or insolent behaviour towards the Judge whilst holding Court, or engaged in his judicial duties at chambers, or towards referees or arbitrators whilst sitting on a reference or arbitration, tending to interrupt the due course of a trial, reference or arbitration, or other judicial proceeding; 2d. A breach of the peace, boisterous conduct, or violent disturbance in presence of the Court, or its immediate vicinity, tending to interrupt the due course of a trial, or other judicial proceeding; 3d. Disobedience or resistance to any lawful writ, order, rule or process, issued by the Court or Judge at chambers; 4th. Disobedience of a subpoena duly served, or refusing to be sworn or answer as a witness; ' 5th. Rescuing any person or property in the custody of any officer, by virtue of an order of process of such Court or Judge at chambers. 1. Contempt is defined by the statute to be the disobedience or resistance of a lawful order of the Court or Judge; and if a Court having jurisdiction, should issue an erroneous order, a disobedience of it is a contempt. Ex parte Cohen et al., 5 Cal. 494. 2. Where an order was made by the District Court of the Eighth Judicial District, whereby A was ordered to be imprisoned forty-eight hours and fined five hundred dollars for contempt of Court, without setting forth any of the facts whereon the order was based: Held, that a certiorari should issue to remove the proceedings for review into this Court; and held, further, that a mandamus was not a proper remedy in such case. People v. Turner, 1 Cal. 152. 3. Where an order of the District Court, fining and imprisoning for contempt, does not specify on its face wherein the contempt existed, it will be reversed on certiorari. Ex parte Tried; Id. 187. 4. It is the right and duty of the Supreme Court, on habeas corpus, to review the decisions of inferior Courts, in cases of contempt, as well as in others. Er parte Rowe, 7 Cal. 181. 5. A commitment for contempt, for refusing to obey an unlawful order of Court, can be reviewed and set aside by a superior Court. Id. 6. In suit for divorce, the Court has power to order the husband to pay money to the wife for her support during the litigation, and for counsel fees and other legal expenses; and such order may be enforced by imprisonment for contempt in case of refusal to pay. Ex parte Perkins, 18 Cal. 60. 7. Where in the regular course of judicial proceedings before a Court of general jurisdiction, a party having notice of the proceedings has been ordered by the judgment to pay a certain sum of money, and in default of obedience to the order has been committed for contempt, he cannot, on application to the Supreme Court for a writ of habeas corpus, question the regularity of the facts; the power of the Court below to make the order is the only question. Id. 8. As to the regularity of the proceedings, and the propriety of the order, the Supreme Court is not an Appellate Court, but a Court of original special jurisdiction, to discharge the applicant, when no legal cause of detention exists. Id. 9. The Court has power to punish a corporation for a willful disobedience of the order of the Court. People v. Albany and Vermont R. R. Co., 12 Abb. Pr. R. 171. 10. In an action to restrain the infringement of a trade-mark, one of the plaintiffs, when offered as a witness on their own behalf, as to the issue on the question of damages sustained by them by the infringement, refused to answer as to the materials with which his compound, which he sought to protect by the trade-mark, was prepared: Held, that his claim for damages was properly stricken out as a penalty for contempt in refusing to answer, he not offering other testimony in support of it. Burnett v. Phalon, 11 Abb. Pr. 157. 11. An attachment to commit a party for contempt is not necessarily a nullity, because the order to show cause was not personally served on the defendant, and he had no notice of it prior to the adjudication on the question of contempt. Pitt v. Davison, 12 Abb. Pr. 385. 12. The defendants will not be punished for contempt for disobeying an injunc tion order in supplementary proceedings founded on affidavit, which does not truly describe the judgment. Kennedy v. Weed and Wife, 10 Abb. Pr. R. 62. 13. A party is not justified in disobeying an order, because it is merely erroneous. The Arctic Fire Ins. Co. v. Hicks, 7 Abb. Pr. 204. 14. Where an order is made directing a party to deliver property to a receiver, an attachment for contempt will not issue, because he refuses to do so on demand made by the plaintiff, his attorney, or the referee appointed to see that the delivery is made. Panton v. Zebley, 19 How. Pr. 394. § 481. A contempt committed in the presence of the Court may be punished summarily; when not so committed, an affidavit or statement shall be made. When a contempt is committed in the immediate view and pres-. ence of the Court, or Judge at chambers, it may be punished summarily; for which an order shall be made, reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein prescribed. When the contempt is not committed in the immediate view and presence of the Court, or Judge at chambers, an affidavit shall be presented to the Court, or Judge, of the facts constituting the contempt, or a statement of the facts by the referees or abitrators. 1. An order of Court adjudging a party guilty of contempt, should always show upon its face the facts upon which the exercise of the power is based, and the adjudication is made. The People v. Turner, 1 Cal. 152. 2. Whenever an order of the District Court, fining and imprisoning for contempt, does not specify on its face wherein the contempt consisted, it will be reversed on certiorari. Ex parte Field; Id. 187. 3. Every Court has, while engaged in the performance of its lawful functions, as an incident to its judicial character, the authority to preserve order, decency and silence in its presence; and in such case, may apprehend and punish an offender without further examination or proof; but where the offense is committed out of Court, the party is entitled to a notice and a hearing in his defense. Id. 4. An attachment will not be issued against a District Judge for noncompliance with a writ of mandamus, by which he was directed to vacate an order expelling the relator from the bar, and reinstate him in his office of attorney, when it does not appear from the papers on which the motion for the attachment is founded that any application has been made to the Court to vacate the order as commanded by the writ of mandamus, and where it appears that, so far as the action of the Judge in vacation is concerned, he has in substance complied with the command of the writ of mandamus; and in such case, it will not be deemed a disobedience of the writ, that the Court has again expelled the relator for reasons alleged to have arisen after the issuing of the writ. Id. 188. 5. The District Courts have jurisdiction to punish for contempts of their process, and to such writs as are necessary to the exercise of that jurisdiction. Er parte Cohen et. al., 5 Cal. 494. 6. A party committed for refusing to answer questions propounded to him as a witness, under an order that he stand committed till he answer the questions, will be discharged on habeas corpus, where it appears that the suit has abated; there being no longer parties or subject matter before the Court, there is no longer a case in which the questions can be asked. Ex parte Rowe, 7 Cal. 175. 7. It seems that the refractory witness might still be reached by attachment for the contempt, and by a judgment thereon. Id. 8. A statement that R. was committed for contempt in refusing to answer certain questions propounded to him by the Grand Jury, is not a compliance with the section. The questions asked should be set out. Id. 181. § 482. A warrant of attachment may issue, or a notice to show cause. When the contempt is not committed in the immediate view and presence of the Court or Judge, a warrant of attachment may be issued to bring the person charged to answer; or without a previous arrest, a warrant of commitment may, upon notice, or upon an order to show cause, be granted; and no warrant of commitment shall be issued without such previous attachment to answer, or such notice or order to show cause. § 483. Bail may be given by a person arrested under such war rant. [1859.] Whenever a warrant of attachment is issued pursuant to this chapter, the Court or Judge shall direct by an endorsement on such warrant, that the person charged may be let to bail for his appearance, in an amount to be specified in such endorsement. § 484. Sheriff shall, upon executing the warrant, arrest and detain the person until discharged. Upon executing the warrant of attachment, the Sheriff shall keep the person in custody, bring him before the Court or Judge, and detain him until an order be made in the premises, unless the person arrested entitle himself to be discharged, as provided in the next section. § 485. Bail bond, form and conditions of. When a direction to let the person arrested to bail is contained in the warrant of attachment, or endorsed thereon, he shall be dis |