assess the damages which the owner, or if there be several, which the respective owners of such lands and tenements will sustain, by being deprived thereof. They shall make an inquisition, to be signed by themselves and by the sheriff, in which they shall set forth the names of the several owners of the lands and tenements in question, and the rights of each owner respectively, so far as the same can be ascertained by them, together with the amount to be paid therefor by the people of this state, and to whom particularly; which inquisition the sheriff shall forthwith return, together with the writ, to the court of chancery.—Ibid, 488, §70.

Note ante p. 297.—Where a delault is suffered as to part of the declaration, and issue is joined as to the residue, or where some of several defend. ants suffer a default, and others plead to issue, the damages on the default in these cases must be assessed by the same jury who try the issue; and you cannot therefore proceed upon the default beyond the rule for interlocutory judgment. And by statute, you may go to trial upon the issues without entering interlocutory judgment on the default.-Laws of 1833, p. 394, § 1; 2 Burr. Pra., 372.

CHAPTER XII.

Attachments.

An attachment is a writ issuing from a court of competent jurisdiction in the nature of a criminal process, and is designed for the punishment of contempts of court. (1 Wils., 300.) Its purpose is to bring into court the party against whom it is issued, to answer interrogatories, which, upon the return of it, are to be exhibited against him; but in its design and effect, it is frequently no more than a civil proceeding.-5 J. R., 117; 6 Cowen, 42; 1 Bos. & Pull., 336; 2 R. S., 443, § 18, 19.

Indeed the attachments for most of the species of contempt, and especially for non-payment of costs, and non-performance of awards are to be looked upon rather as civil executions for the benefit of the injured party, though carried on in the shape of criminal process, for a contempt of the authority of the court.— 4 Chitty's Black., 222.

There are other kinds of attachments under our statutes, which are in the nature of process, and are entirely civil in their nature: Attachments against absent and absconding debtors.-1 R. S., 2d ed., 764.

Attachments against ships and vessels.—Ibid. 767.

Attachments issued by the county treasurer against the lands of non-residents for the non-payment of taxes upon personal property.-1 bid, 387.

Attachments against foreign corporations.-2 Ibid, 375.

Attachments or warrants issued by a county treasurer against delinquent town collectors.-Ibid, 389.

Attachments or warrants issued by the comptroller against delinquent collectors of canal tolls.-Ibid, 221.

Before proceeding to investigate who are liable to attachments for contempts, it becomes necessary to ascertain the different kinds of contempts. These consist of two, civil and criminal. Criminal contempts are:

Disorderly, contemptuous, or insolent behaviour, committed during the sitting of any court, in its immediate view or presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority.

Any breach of the peace, noise, or other disturbance, directly tending to interrupt its proceedings.

Wilful disobedience of any process or order lawfully made or issued by it.

Resistance wilfully offered by any person to the lawful order or process of the court.

The contumacious and unlawful refusal of any person to be sworn as a witness; and when so sworn the like refusal to answer any legal and proper interrogatory.

The publication of a false or grossly inaccurate report of its proceedings; but no court can punish as a contempt the publication of true, full and fair reports of any trial, argument, proceedings or decision had in such court.-Ibid, 207, § 12.

The court may punish summarily any contempt committed in its view and presence, but in all other cases the party charged shall be notified of the accusation, and have a reasonable time to make his defence.-Ibid, § 12.

Punishment for these contempts may be by fine or by imprisonment in the county jail where the court may be sitting, or both, in the discretion of the court; but the fine shall in no case exceed two hundred and fifty dollars, nor the imprisonment thirty days. And when the person shall be committed to prison, for the nonpayment of such fine, he shall be discharged at the expiration of thirty days.—Ibid, § 11.

These provisions do not affect any proceedings against the parties or officers, as for a contempt to enforce any civil right or remedy. And the summary punishment by the court is no bar to an indictment for such contempt. (Ibid, 208, § 14, 15.) Neither do the above exactly fall in the nature of the contempts treated of in the present chapter, though they are punishable by process in the nature of an attachment. The contempt at present under examination, regards the sheriff in his official capacity, and the attachment issued thereon is in the nature of a civil remedy.

All attorneys, counsellors, solicitors, clerks, registers, sheriffs, coroners, and all other persons in any manner duly selected or appointed to perform any judicial or ministerial services, for any misbehaviour in such office or trust, or for any wilful neglect or violation of duty therein; for disobedience of any process of such court, or of any lawful order thereof, or of any lawful order of a judge of such court, or of any officer authorized to perform the duties of such judge: parties to suits, attorneys, counsellors, solicitors, and all other persons, for the non-payment of any sum of money ordered by such court to be paid, in cases where by law execution cannot be awarded for the payment of any such sum, or for the collection thereof; and for any other disobedience to any lawful order, decree, or process of such court: and all other cases where attachments and proceedings as for contempts, have been usually adopted and practised in courts of record to enforce the civil remedies of any party to a suit in such court, or to protect the rights of any such party: (Ibid, 441, § 1,) and some other cases included in the second, fourth fifth, sixth, and seventh subdivisions of the same section, are made cases of misconduct which courts may punish by attachment; and in fact any misconduct by which the rights or remedies of a party in a cause may be defeated, impaired, impeded, or prejudiced, in the cases specified in the first section may be punished in the same manner.-Ibid.

We have seen that the sheriff or any other officer to whom any process shall be delivered, shall execute the same according to the command thereof, and shall make due return of his proceedings

thereon, which return shall be signed by him. For any neglect of this duty, he is liable to an action at the suit of the party aggrieved for his damages, and to an attachment.-2 R. S. 2d ed., 358, § 80.

Although the officer is required by the command of the writ to return it on the day mentioned in the body of it as the return day, yet before any proceeding can be had against him by attachment for his omission or neglect to do so, at any time after the return day of the writ, either party must serve a notice upon him, requiring him to return such writ within twenty days after service of such notice; and, if not so returned, upon filing an affidavit of the service of such notice, and of the delivery of the writ, the sheriff's default may be entered, and an attachment issued of course. (Sup. Court Rules, R. 15.) Service of the notice may be made personally upon the sheriff, but not on his deputy; or by leaving the same at the office of the sheriff between the hours of nine o'clock and twelve o'clock in the morning; or between the hours of two and five in the afternoon. But the service cannot be made by leaving it in the office if there is any person there, but it must be delivered to such person. (2 R. S., 2d ed., 214, § 57.) But, if the sheriff has no office the service of papers directed to him, may be made by leaving the same at the county clerk's office with the clerk or his deputy, and the same shall be deemed equivalent to personal service on the sheriff.-Ibid, § 58.

In bailable cases, the sheriff is also liable to an attachment, where he has returned the defendant in custody upon the capias, provided good special bail is not put in by the defendant.

After the sheriff has returned cepi corpus, if the defendant be still at large, and bail be not perfected, the plaintiff has his election, either to wait until there is a default in the condition, and take an assignment of the bail bond, or at the expiration of twenty days after the return of the writ to proceed against the sheriff' For this purpose the statute provides that, if special bail shall not be put in within twenty days after the return day of the writ on which the arrest was made, upon filing an affidavit that such bail has not been put in and perfected, and that such writ has been