
    Underwood’s Case.
    1. In cases at common law a party arrested for contempt will bo discharged if by his answer to interrogatories filed he make such a statement as will free him from the imputed contempt, and testimony contradicting such answer will not be heard.
    2. In cases in chancery, however, the rule is different. The answer of the defendant, denying the contempt is not conclusive and does not necessarily entitle' the defendant to his discharge; the truth of the answer may be examined into and the action of the court regulated in accordance therewith.
    3. These principles are not changed by the provisions of the act of 1801, ch. d,sec. 22 and sec. 23.
    Elizabeth Morgan, being about to marry Hambright Black, executed a deed of trust to Lewis Jordan whereby she conveyed to said Jordan certain slaves for the purpose of haying them emancipated according to the laws of the State and sent to Liberia at the death of said Elizabeth, she reserving to. herself a life estate therein. They were married, and the slaves came into the possession of Black.
    Threats were made by Black, that he would sell the slaves, and thereupon Jordan filed his bill against Black, praying an injunction, &c. &c. in the Chancery court at Kingston. This injunction was granted and at the June term, 1838; of the Supreme court at Knoxville, on an appeal, a decree was entered up by which it was ordered that said “H. Black should be perpetually enjoined from selling any of said slaves or their increase, or in any wise interfering with or impeding the due execution of the trusts of said deed, or from taking or removing said slaves beyond the limits of this State.” See Meigs, Kep. p. 147
    Shortly after the rendition of this decree in the Supreme court, the slaves were clandestinely removed to the State of Mississippi. Jordan, at the July term, 1839, of the Supreme Court, made an affidavit stating that, H. Black, W. Black and Thomas J. Underwood, had removed the slaves mentioned in the decree, after the rendition thereof, to the State of Mississippi, with full notice of said decree, &c. &c. Thereupon the court made the following order:
    “The complainant having disclosed on affidavit and shown to the court sufficient cause for the issuance of an attachment in this cause, it is on motion ordered and directed, that an attachment issue to the Sheriff of any county in this State, commanding him to have the bodies of the defendants before the court, to answer a charge of contempt in this court, by violating an order heretofore made in this cause.”
    This attachment was not executed on W. Black or H. Black, but served on Underwood. He gave bail for his appearance, and appeared at the July term, 1840, and filed his answer, denying his knowledge of the decree for a perpetualinjunction. Upon this answer, Churchwell, his counsel moved that he be discharged. This was resisted by the counsel for Jordan, who tendered the affidavit of Jordan, stating that Black had notice of the decree and that he could prove the fact, and praying that proof might be taken in the cause.
    
      Churchwell, in favor of the motion,
    contended that Underwood was no party to the decree, and was not chargeable with constructive notice thereof in a proceeding of this sort; because if this were so, men really innocent of all contempt would be thrown into imprisonment. The defendant had filed his answer, denying all notice of the decree and purging himself of all contempt; that this was conclusive, and the defendant should be discharged. It was never intended, under our constitution and laws, that this arbitrary and dangerous discretion should be exercised by a Judge or Chancellor, when the charge of contempt was clearly denied on the oath of the individual charged. This summary mode of arresting citizens and depriving them of their liberty, was inconsistent with the genius and nature of our free institutions, as the party wras stript of his trial by jury. He cited and commented on the provisions of the act of 1801, ch. 6, sec. 22, 23, as sustaining this view of the case:
    
      Alexander, contra.
    
    This process of attachment for contempt must necessarily be as ancient as the courts of justice, and isa necessary incident to every superior tribunal to enforce its decrees, and command respect for its authority, 4 BI. Com. 286. The process of attachment is merely intended to bring the party into court. When, if in a court of law, he may purge himself of the contempt on oath without his answer being controverted, and he will be discharged; but in Chancery it is different, and his answer may be disproved by affidavits of the adverse party. 4 Bl. Com. 288,1 Bac. Abr. 286: 2 Comyn’s Digest 380: Douglas 516: 1 Harrison’s Chancery, 202: 4 John. 332: ib. 373; per. Kent, 6 John. Rep. 486, In 4th John. Reports, supra, Kent says it is the settled practice of courts of Chancery to hear counter affidavits, and decide upon the testimony. And so it was admitted by Emmet counsel for Yates, page 332. There can be no difference in the proceedings, whether the person guilty of the contempt be a party to the decree alledged to have been violated or a stranger, since the gist of the offence is a knowledge of the order or decree of the court, and a wilful contempt of its authority. The difference is, when the act itself is a contempt, the person guilty being a party to the original proceeding will be precluded from denying bis knowledge. See the case above in 4 John, and 2nd Atkins, 269.
   Reese, J.

delivered the opinion of the court.

At the June term of this court, in the year 1838, a final decree on appeal from the Chancery court at Kingston was pronounced in the case of Jordan vs. Black, in favor of the complainant, and the defendant, Black, was therein perpetually enjoined from doing certain acts specified. At the July term of this court, 1839, on the ground of affidavits then filed, alledging the wilful disobedience of the decree, and the violation of the injunction referred to, on the part of the said Black, the defendant in said suit, and also on the part of one Underwood and another, process of attachment was awarded against said Black, Underwood and another; Underwood has been arrested thereon, has given bond for his appearance at the present term of this court, and he has appeared. Interrogatories have not been filed, as would, perhaps have been the proper, at all events, the more regular course, touching the alleged contempt. But he has filed, on oath, an answer in relation to his conduct and motives' in the. premises, which his counsel deeming full and satisfactory, have thereon moved the court that he be discharged. This is opposed by the other side, and in resistance thereof they insist that they are entitled by counter affidavits or opposing testimony to show that the explanation given in said answer, and the grounds of excuse or exculpation there set forth, are not true.; and whether they be .thus entitled, or whether the defendant has a right to claim his discharge by force of the facts above stated in his answer, and without enquiring into their verity, is the preliminary question which we are called upon to decide. Fortunately for our community and much to their credit, the causes which lead to discussions on the subject of contempts have hitherto been of rare occurrence, and the question referred to has not been settled in the practice of our courts. But upon referring to the authorities, it appears to be clear of all difficulty. . Two propositions are maintained by these authorities; first, that in cases at common law, the defendant will be discharged, if, by his answer to interrogatories filed he make such a statement as will free him from the imputed contempt, and that opposing testimony will not be heard; secondly, that in cases in Chancery, the truth of the defendants statement in reply to interrogatories filed, may be controverted on the other side, and the whole mátter be enquired into and ascertained by the court. 4th John. Rep. 332: Dane’s Abridgment, ch. 220, art. 4: 4 Bl. Com. 288: 1 Harrison Chancery, 202: Douglas, 516. The power to punish summarily by process of attachment, for contempts has been coeval with the existence of courts. Plasty thinkers, proceeding on false notions of liberty, have sometimes maintained, that this power is but little in harmony with the liberal institutions of England g.nd America. But on the contrary, it is obvious that wherever the laws govern and not the bayonets of the executive power, the courts must be armed with this summary authority in order to attain the ends of their institution. To courts of chancery it is indispensable. Their decrees are sometimes affirmative, and require an act to be done, as that one party shall convey by deed, shall surrender up an instrument to be cancelled; or sometimes negative, and restraining, as that a party shall refrain from doing a specified act. Without the power to enforce these decrees by punishing disobedience and violation of them, a court of chancery would be worse than useless, and for this reason, perhaps, the practice on the' point we are considering, differs from that of a court of common law. For if the answer of a defendant in questions of contempt were conclusive, a decree might lose all its vitality and not be enforced at all. The temptation, in many cases, to defeat the efficacy of a decree by sturdy denial of imputed contempt, might be too strong for the virtue of ■a party. - The rule, therefore, is regarded as well settled in England and in this country, that in Chancery testimony will be heard to contradict as well as to support the truth of a statement made by one against whom proceedings for contempt had been instituted.

But it has been suggested that the 22nd and 23d sections of the act of 1801, cb. 6, have changed the practice referred to. We are satisfied that such is neither the purpose nor the effect of any provision contained in that statute; but that the settled course of proceeding in the point we have been considering, remains unchanged by the act of 1801, ch. 6. Such affidavits as may be offered to contradict the answer of defendant Underwood, .filed in the present case, will therefore be received as evidence.  