
    The People, ex rel. Backus, vs. Spalding.
    1843. May 2.
    A supreme court commissioner has no jurisdiction or authority to discharge a party upon habeas corpus, who is in custody upon a commitment for a con. tempt, by a court of competent jurisdiction, plainly and specially charged in such"commitment, and where the time for which the prisoner might lawfully be detained has not expired.
    A discharge of a debtor under the bankrupt act does not operate to discharge him from a commitment for the non-payment of a fine, imposed upon him for an actual contempt, and where such fine is directed to be paid into court to abide the order of the court in relation to the same.
    Where a defendant, in a suit in chancery, is ordered or decreed to pay a sum of money it becomes a debt, and the ordinary precept to commit the defen, dant, for not paying the money according to the order of the court, is in the nature of a capias ad satisfaciéndola ; and the defendant may be discharged from such imprisonment under the insolvent acts, upon a surrender of his property.
    But where a fine is imposed upon a party for a wilful contempt of the court by violating an injunction, or for any other criminal conduct of the like nature, he can neither be discharged under the insolvent laws nor under the bankrupt aot
    Whether a discharge under the recent bankrupt act, will operate to discharge the bankrupt for a commitment for a contempt for the non-payment of a sum of money, payable under an order or decree of the court of chancery; Qucere?
    
    This was an appeal by the defendant, from an order of the vice chancellor of the eighth circuit, to recommit the defendant upon a conviction for a contempt. The defendant had been convicted for the wilful breach of an injunction, and had been fined for such misconduct, as directed by the statute. After his commitment he was discharged from his debts under the bankrupt act. A supreme, court commissioner, supposing that a fine imposed upon a party for such misconduct was an ordinary debt, from which the defendant could be discharged under the late bankrupt act, assumed the authority to discharge him upon habeas corpus.
    
      J. L. Curtenius, for the appellant.
    The discharge under the bankrupt law discharged the appellant from the payment of the fine and from the imprisonment on the mittimus to enforce its collection. The fine belonged to the party, the relator. His loss or injury, to indemnify him for which the fine was imposed, was produced by the disposition of the property or money of the appellant on which the relator by his creditor’s bill had a lien. The fine is not a punishment, but a remedy to replace the amount of the loss; when paid, it will reduce so much of the relator’s debt. It is merely a remedy to assist the party in collecting his debt. The whole proceeding is under the control of the party. (7 Paige, 325. 2 R. S. 471, § 48.) If the order inflicting the fine amounted to a judgment, it would not have been a judgment of a higher nature than one recovered for a tort. And such a judgment is a debt from which a debtor maybe discharged under our insolvent laws. (Cowen, 66. 22 Wend. 364. 19 Idem, 629.) In Ex parte Smith, (5 Cowen, 276,) it was held that a discharge under the act to abolish imprisonment for debt, extended to one committed to gaol for not fulfilling an order of filiation and maintenance. Such an order is a debt, and is equivalent to a judgment. (9 John. 367. 3 Hill, 558.) Under the bankrupt act a discharge extends to all debts, contracts or engagements, (17 Wend. 478. 1 John. 38.) The fine inflicted against the appellant1'1 is a "debt, and was therefore discharged by the appellant’s certificate. The vice chancellor had no jurisdiction to recommit the appellant. By the decision of the commissioner the matter was res adjudica ta. (25 Wend. 65.)
    
      A. Gardiner, for the respondent.
    The commissioner had no authority to discharge the defendant. The bankrupt act under which his discharge was granted is unconstitutional. It is retrospective in its operation. The judgment in this case was obtained prior to its passage. The act authorizes the discharge of the debtor without the concurrence and against the consent of his creditors. The bankrupt act does not extend to a commitment for a wilful disobedience of an order or process of a court of record. And it does not confer upon our state commissioners authority to determine upon the validity of a discharge, granted by the U. S. courts. The commissioner is not a court of justice, within the meaning of the bankrupt act. The defendant was committed for wilfully violating the injunction of this court; the cause of imprisonment being plainly and specially stated on the face of the mittimus. (2 R. S. 207, § 10, sub. 3.) The defendant was convicted and punished as for a criminal contempt. The tine mentioned in the mittimus is neither a debt, contract or engagement, and is therefore not embraced by the defendant’s discharge. The fine is not a debt due the relator; it must be paid into court, and it can only be obtained on the special order of the court. The question in this case has been decided in this court. The bankrupt law is nothing more than an insolvent law. And discharges under these laws have been held not to extend to commitments for fines imposed for a contempt of court in violating an injunction. The party in such cases is not in execution in a civil action ; and the proceeding is not in substance a civil proceeding. (2 Paige, 314. 3 Ves. 504. 1 Cowp. 136. 4 Paige, 283.) There is a distinction between criminal contempts, and those resorted to as a mere mode of collecting a pecuniary demand. The statute in reference to the compensation to the party aggrieved regulates the extent of the fine, but does not alter the nature of the offence. (2 R. S. 443, § 20, 21.) The application of the defendant for a discharge should have been made to the court of chancery. A contrary course would lead to a conflict of jurisdiction. (Eden’s Bank. Law, 429. 1 Hill, 165, 171. Ex parte Bonesteel, per Concklin, J.)
    
   The Chancellor.

It is perfectly clear that the commissioner in this case had no jurisdiction or authority to discharge the defendant. The statute declares that where, upon the return to a writ of habeas corpus, it appears that the party is detained in custody for a contempt, plainly and specially charged in the commitment, by a court having authority to commit for such contempt, and that the time during which such party may be legally detained has not expired, it shall be the duty of the officer before whom the habeas corpus is returnable, forthwith to remand such party. (2 R. S. 567, § 40.)

It is not necessary in this case to inquire, whether a discharge under the bankrupt' act will operate as a discharge of a commitment, as for a contempt, for the non-payment of a sum of money payable under an order or decree of the court of chancery. But in a case like the present, where the defendant is fined and imprisoned for an actual contempt, and the fine is directed to be paid into court to abide the final order of the court in relation to the same, there is no pretence that the bankrupt law was intended to relieve the defendant from the consequence of his criminal misconduct.

Where the defendant in this court is ordered or decreed to pay a sum of money, it becomes a debt; and the ordinary precept to commit him for not paying it, is in the nature of a capias ad satisfaciendum, and the defendant may be discharged under the insolvent act, upon a surrender of his property. (Van Wezel v. Van Wezel, 3 Paige’s Rep. 38.) But where a fine is imposed upon a defendant for a wilful contempt in violating an injunction, or for any other criminal conduct of the like nature, he can neither be discharged under the insolvent laws nor under the bankrupt act; but he is in the same situation, in this respect, as if such fine had been imposed upon him on a conviction for an assault and battery or for stealing. And until the act of the last session, the court itself, which had imposed the fine for the protection of the rights of the relator, could not discharge the defendant without actual payment.

The decision of the vice chancellor was unquestionably right, and the order appealed from must be affirmed, with costs. 
      
      
         Affirmed upon appeal to the court for the correction of errors, in December, 1813.
     