lar conclusion, and not as a rule to be followed without inquiry into its correctness."

With the foregoing authorities before us, believing, as we do, that the plain letter of the Constitution of Ohio cannot be altered or amended by judicial construction, and believing, for the reasons given in State ex rel. V. Yates, that county offices are not local offices, and that, even if they were conceded to be such, the matter of their compensation is not necessarily local, and may become, and is, a matter of general public concern, as demonstrated in State ex rel. v. Yates, and believing, further, that the decision in State ex rel. v. The Judges, did not lay down a rule of property, and it not appearing that any vested rights have been acquired under it, we are constrained to formally overrule State ex rel. The Attorney General v. Judges, 21 Ohio St. 1. The circuit court should have sustained the demurrer to the answer, and should have awarded a peremptory writ of mandamus, as prayed in the petition.

The judgment of the circuit court in the case at bar is therefore reversed, and peremptory writ awarded.

1. Burns' Rev. St. 1901, § 817, providing that no female shall be imprisoned on any order of arrest and bail, or on an execution against the body, applies only to arrest in proceedings in the nature of the common-law capias ad satisfaciendum, and does not prevent the imprisonment of a female for contempt in refusing to obey an order in supplementary proceedings directing her to pay over money in her hands belonging to the debtor.

2. Where a female refused to pay over money in her hands found to be applicable to a judgment against a third person, as ordered by the court in supplementary proceedings, the court had inherent power to punish her for contempt by imprisonment.

Appeal from Circuit Court, Hancock County: E. W. Felt, Judge.

Action by Ellen Joyce against Joseph Everson. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

David Smith, K. M. Hord, and Ed. K. Adams, for appellant. Marsh & Cook, for appellee.

HADLEY, J. False imprisonment. In a proceeding supplemental to execution instituted by appellee against his judgment debtor, appellant was summoned to answer concerning money in her hands belonging to the said debtor. On April 13, 1899, upon answer and trial, the court found that appellant had in her possession $600, the property of said judgment debtor, which ought to be

applied to the satisfaction of appellee's judgment, and thereupon entered an order and judgment that appellant forthwith turn over to the clerk of the court said sum of $600, or so much thereof as should be necessary to pay appellee's judgment. Appellant failing to comply with the order, appellee on September 7, 1899, filed his affidavit, and moved the court for an order against appellant to show cause why she should not be punished as for a contempt of court in failing and refusing to obey said order. Appellant failed to. show cause, whereupon she was adjudged guilty of a contempt of court for disobedience of said order, and committed to the jail of the county until she complied therewith, or was discharged according to law. Under said contempt order the sheriff committed appellant to the county jail, where she was confined about 20 days, and when, with the consent of the appellee, and without complying with said order, or attempting to do so, she was released from custody, and brings this suit. She recites in her complaint the foregoing facts, and also that she is a female, and prays judgment for her damages in being illegally and wrongfully imprisoned. Appellee's demurrer was sustained to the complaint, and, appellant refusing to amend, judgment was rendered against her, from which she appeals.

The question for our decision is, did the trial court possess legal authority to commit appellant (being a female) to the county jail as for a contempt of court in refusing to obey its order? Appellant affirms that no such power existed, and directs attention to section 817, Burns' Rev. St. 1901, which provides that no female shall be imprisoned upon any order of arrest and bail, or upon an execution against the body, as sustaining her contention. It will be observed that the section referred to is one of a series which prescribes a procedure termed an "execution against the body," and which is in the nature of the old common-law writ of capias ad satisfaciendum, but which is limited to a particular class of cases, where, among other things, the execution debtor has in his possession money, credits, etc., with which the judgment might be paid, and which he fraudulently withholds or conceals for the purpose of delaying or defrauding the creditor. Section 804. An execution against the body is an extraordinary civil remedy. It can be invoked only in cases where the ordinary execution against property is shown to be unavailing on account of the debtor's fraud. It is a legal process provided by the Legislature as an efficacious agency against the wrongful practices of the execution debtor, and is claimed and issued as a matter of right when the creditor brings himself within prescribed conditions. Baker v. State, 109 Ind. 47, 9 N. E. 711. In a successful proceeding to procure an execution against the body, imprisonment of the fraudulent debtor in the county jail in default of obedience

to the court's order is as much a part of the fixed procedure as the filing of the original affidavit. In such case the court administers and the sheriff executes the law as written, and in such case the court has no authority of law to imprison a female. But the case we have before us rests upon a very different foundation. While a proceeding supplemental to execution-being the one complained of here is analogous in many of its provisions to a proceeding for an execution against the body, those we have under review bear no likeness to the corresponding provisions of the latter. Relating to the supplemental proceeding, section 833, Burns' Rev. St. 1901, provides that upon the hearing the court may order any property of the judgment debtor in the hands of himself or any other person applied to the satisfaction of the judgment, and "such court shall have full power to enforce all orders and decrees in the premises by attachment or otherwise." While this section occurs in the same act and chapter as the proceeding for an execution against the body, it is nevertheless a part of a separate and distinct scheme in aid of the collection of money judgments, and, in order of position, is subsequent to the former. The difference in the two schemes is in some respects so vital as to preclude the belief, in the absence of express words, that the Legislature intended that section 817, supra, should apply to attachment cases arising under section 833, supra.

In the first place, appellant was a stranger to appellee's judgment. No execution of any kind could issue against her or her property for its payment. But she was found in possession of money that belonged to the person who owed the judgment, and upon which she had no claim. She was commanded by the court to yield that possession to the law, and she refused. The court, in vindication of its authority, attached her for contempt, and ordered her commitment to the county jail. The order of commitment was in no sense such an execution against the body as the Legislature had in contemplation in the adoption of section 817, supra. The order was not a prescribed writ or process, nor in aid of a civil remedy. It proceeded directly and primarily from the court as a means of maintaining its authority. The foundation of the commitment was appellant's disobedience in refusing to obey the court's mandate, and not a fraudulent effort to circumvent the payment of one's own debt. The collection of the debt was only indirectly involved. But the authority of the court to commit appellant rests upon higher grounds. The judiciary is a co-ordinate branch of the state government, and possesses powers which were not given it by the Legislature, and which the Legislature cannot take away. Powers which are purely judicial, and essential to the existence and efficiency of courts of superior jurisdiction, are inherent; that is, they spring from the nature and constitu

Without

tion of the tribunal, to preserve its integrity and accomplish its objects. Hawkins V. State, 125 Ind. 570, 25 N. E. 818; Cheadle v. State, 110 Ind. 301, 11 N. E. 426, 59 Am. Rep. 199; Holman v. State, 105 Ind. 513, 5 N. E. 556; Stonehill v. Stonehill, 146 Ind. 445, 454 N. E. 600; Little v. State, 90 Ind. 338, 46 Am. Rep. 224. It is said in the last case cited that "among the inherent powers of a court of superior jurisdiction is that of maintaining its dignity and securing obedience to its process and rules. * the power to punish for contempt, no other could be effectively exercised. There is no doubt but the power to punish for contempt is an inherent one, for, independent of legislation, it exists, and has always existed, in courts of England and America. It is, in truth, impossible to conceive a superior court as existing without such power." The law has always been liberal towards females, and considerate of their punishment, but the courts have never gone so far as to hold them immune from imprisonment for contempt. The Legislature has expressly sanctioned imprisonment for contempt (section 1022, Burns' Rev. St. 1901), in general terms, and without any exception of females. There can be no adequate reason why females should not be held to render the same respect and obedience to the rules and orders of superior courts as are required of men, and be coerced, when necessary, by the same means. Section 817, supra, as it relates to executions against the body, is, at least, of doubtful propriety, and we have no disposition to extend it to contempt proceedings. The reasons are further exemplified by the facts of this case. As the record comes to us, appellant makes no denial of the correctness of the court's finding, and no complaint of its order that she deliver the debtor money to the clerk for the satisfaction of appellee's judgment, but contumaciously defies its execution because she is a female. If she is exempt from imprisonment for this contempt, then she may indulge any disobedience or unseemly conduct towards the court, with impunity. That she might do so is absurd. She elected to go to jail rather than surrender the money, was released aft er 20 days' confinement without compliance or attempt at compliance with the order, or effort to purge herself of her contempt, and she should consider herself fortunate that she fared no worse. Judgment affirmed.

ester state, it must be presumed that the com-law rule on the subject prevails there. 2. Exemption laws have no extraterritorial force or effect.

Appeal from Circuit Court, Jennings Couny; Willard New, Judge.

Action by Fred Hollenbeck against the Baltimore & Ohio Southwestern Railroad Company. From a judgment of the circuit court, on appeal from the justice's court, for plaintiff, defendant appeals. Reversed.

0. H. Montgomery, McMullen & McMullens, d Edward Barton, for appellant. S. A. Warnes and Lincoln Dixon, for appellee.

JORDAN, J. This action was commenced by appellee before a justice of the peace in the city of Seymour, Jackson county, Ind., to recover of appellant railroad company the sum of $42.18, wages alleged to be due him from the company on account of labor performed apon its roadbed in said county and state. In addition to this amount, appellee sought to recover a penalty and attorney's fees as provided by sections 7056, 7057, Burns' Rev. St. 1901 (Acts 1885, p. 36). Appellant appeared before the justice of the peace and filed an offer to confess judgment for $11.75, which amount, it claimed, was all that was due and aupaid to appellee. Upon a trial a judgment as rendered by the justice in the sum of $52.18. Ten dollars of this amount was allowed as attorney's fees. Appellant appealed to the Jackson circuit court, from which the cause was venued to the Jennings circuit court, wherein, on a trial by jury, appellee was awarded the sum of $67.18. This amount ineluded $25 attorney's fees. Over appellant's motion for a new trial, judgment was rendered against it for the amount assessed by the jury. Appellant, in the circuit court, filed a special answer whereby it set up as a parLal defense that it had been garnished upon the same indebtedness in a proceeding before a justice of the peace in the state of Kentucky, and had been required thereby to pay the judgment of garnishment rendered in said caim. This answer was held sufficient on demarrer. The facts introduced in support of the issue tendered by this answer are as folbows. Appellant is a railroad corporation owning and operating a railroad for the transportadon of passengers and freight. Its road extends into the states of Indiana, Kentucky, Ilizois, and Ohio. In the city of Louisville, Ky., it has and maintains an office, with an agent therein for the transaction of its business. Appellee was a resident householder of Jackson county, Ind.; said county being one through which appellant's line of railway passed. It seems to be conceded that on and prior to the 30th day of January, 1901, appellant was indebted to the appellee in the sum of $35.45 as wages for labor performed by him upon its roadbed in the state of Indiana. Prior to the said 30th day of January, appel

12. See Exemptions, vol. 23, Cent. Dig. § 2.

lee was indebted to a resident citizen of Jackson county, Ind., which indebtedness was evidenced by certain promissory notes executed by him in this state, and payable herein. These were assigned by the payee, by indorsement, to one Bartels, a citizen and resident of the city of Louisville, Ky. He, as the holder of these notes by assignment, on January 30, 1901, duly instituted thereon proceedings in attachment and garnishment, under and in pursuance of the laws of the state of Kentucky, against appellee, as the principal defendant, in the court of a justice of the peace of said city of Louisville, upon the ground that appellee (defendant therein) was not a resident of the state of Kentucky, and was absent from said state. Appellant was made a garnishee defendant in said action before the justice, and appears to have been duly notified and summoned as such in accordance with the laws of the state of Kentucky. Immediately after being garnished in the proceedings in question, it delivered or caused to be delivered to appellee a written notice apprising him of that fact, and notifying him of the place where and before what justice the action was pending, and the time the cause would be heard, and further informed him that it would only make such a defense as was necessary for its protection, and advised him, if he had any defense to the action, to appear and assert the same. It is disclosed that appellee received this notice on the 7th day of February, 1901, and that the judgment in the action of garnishment was not finally rendered until May 10th following. In addition to this personal notice which appellee received, there was a warning order issued to him in said proceedings by the justice of the peace and duly served, as required by the laws of the state of Kentucky. It appears that appellant filed its answer before the justice, and admitted that it was indebted to appellee in the sum of $35.45; alleging that the amount was due to him as wages earned by him in the state of Indiana while in the employ of said company. The answer further averred that the railroad company was a foreign corporation-a common carrier; that appellee was a resident householder of the state of Indiana, and was at the time in the employ of appellant; and that, under the laws of said state, the wages of all persons in the employ of any person or corporation were exempt from garnishment, etc. Appellee failed to appear in said action, and was defaulted, and judgment was rendered therein against him and appellant, whereby it was ordered and adjudged that the plaintiff in said action recover the sum of $28.35; and it was further ordered by the justice that appellee pay said amount into court, to be applied on the claim of plaintiff therein. Appellant complied with this order, and paid the money into court, and was thereupon discharged by the justice from all further liability in said action. The amount so paid by appellant was a part of the wages recovered by appellee in the case at bar. The

issue tendered by appellant under its answer in regard to the proceedings and judgment before the justice of the peace in the state of Kentucky is fully sustained by the evidence. The evidence upon this issue consisted of a certified transcript of the judgment and proceedings before the justice of the peace in the matter of garnishment and of the statutes of that state, and thereby established, beyond any conflict whatever, that the justice had jurisdiction of the res or subject-matter in that proceeding, and that all of the necessary steps in accordance with the laws of that state had been taken in the action to invest the justice with full and complete jurisdiction over all of the parties. There is nothing in the record tending to disclose that appellee's wage claim herein was exempt under the statute of Kentucky, and, in the absence of such a showing, we must presume that the rule of the common law upon this point prevailed in that jurisdiction. The exemption laws of Indiana have no extraterritorial force or effect; hence they could not avail appellee in the state of Kentucky. There is an entire absence of any showing that appellant failed to disclose any defense of which it had knowledge to the court in the proceedings before the justice of the peace in the latter state.

Appellant's counsel contend that the decision of the lower court, under the undisputed evidence, is contrary to law, because it does not give full faith and credit to the records and judicial proceedings of the state of Kentucky, as they are entitled to by virtue of section 1, art. 4, of the federal Constitution. The amount in controversy in this case being within the jurisdiction of a justice of the peace, therefore, under the act of March 12, 1901 (Laws 1901, p. 565), it is appealed directly to this court for the determination of such constitutional question, and for that purpose only. It is contended by appellant's counsel that, under the facts, the decision of this question must be ruled by the holding of this court in Baltimore, etc., R. Co. v. Adams, 159 Ind. 688, 66 N. E. 43, 60 L. R. A. 396. In this contention we concur. Appellant in this case was appellant in that appeal, and the two cases are to all intents and purposes identical. In that case this court, in passing upon the questions therein presented, among other things, said: "We need not here undertake to state the measure of the garnishee's duty in all cases, but it may be said, so far as the main action is concerned, that where the principal defendant has personal knowledge of the suit the former is not bound, in any event, to go further than to look to the jurisdiction, act fairly, and make a full disclosure."

Counsel for appellant seek to have us consider and determine the validity of sections 7056 and 7057, under which it is claimed appellee was allowed to recover attorney's fees in this case. We cannot determine that question, for the reason that it is not duly presented for our decision, because the facts averred in the complaint are not sufficient to bring

the case within the provisions of said sections. See Baltimore, etc., R. Co. v. Harmon (decided by this court on October 29, 1903) 68 N. E. 589. It follows that the court erred in overruling appellant's motion for a new trial, for which error the judgment is reversed, and the cause is remanded to the lower court, with instructions to grant appellant a new trial, and for further proceedings not inconsistent with this opinion.

LAKE ERIE & W. R. CO. et al. v. HOLLAND.

(Supreme Court of Indiana. Nov. 24, 1903.) RAILROADS CARRIERS - LIABILITY — QUALIFICATION OF-SPECIAL CONTRACT-CONSIDERATION-WHAT CONSTITUTES-INSPECTION OF CAR BY SHIPPERLATENT DEFECTS KNOWN ΤΟ RAILROAD-INJURY TO LIVE

STOCK-DUTY OF CARRIER-PLEADING—APPEAL-RECORD-INSTRUCTIONS.

1. Under the rule that, if a plaintiff recover, he must do so upon and in accordance with the allegations of his complaint, a suit against a common carrier for a breach of its commonlaw duty in the transportation of live stock must fail upon proof that the shipment was made under a special contract.

2. While a public carrier may, to some extent, limit by stipulation in the bill of lading his strict common-law liability, a contract qualifying such liability must be supported by a valuable consideration, apart from the mere acceptance of the property for carriage.

3. An actual reduction in the usual freight rate is a sufficient consideration for a contract qualifying a public carrier's common-law liability.

4. A mere recital or acknowledgment in a bill of lading that a reduction in the usual freight rate has been made and accepted in consideration of a qualification of the carrier's common-law liability is not conclusive, but the real transaction may be shown by parol.

5. A special contract by a railroad with a shipper of stock provided that the latter was to select his car, and to release the railroad from all liability for damages resulting from a defective condition of the car. Held that, even though the contract were valid, if the road knew at the time that the car selected was unsafe, and the shipper failed to discover such unsoundness by reason of the defects being hidden, proof of these facts would charge the road with damages accruing therefrom.

6. Freeing itself by contract from its usual common-law duties does not change the true character of a carrier's employment, and it is a public carrier still.

7. The duty to furnish a proper car rests on the carrier, not on the shipper; and the failure to discharge such duty is negligence, from the consequence of which the carrier is not permitted to free itself by contract or otherwise.

8. Where a railroad's special contract provided that a shipper was to inspect and select his own car, to send an attendant with the stock shipped, and to release the road from all liability for damages to the stock, including those resulting from a defective condition of the car, and the stock was injured by reason of defects in the car known to the road, but not to the shipper, the latter's failure to send an attendant did not relieve the road from liability.

9. A complaint good at common law or under the Code must contain a clear statement of all the facts necessary for the plaintiff to prove in the first instance, on an answer of general denial, to show that he is entitled to judgment.

3. See Carriers, vol. 9, Cent. Dig. § 643.