Ex parte Cohen

Mr. Justice Terry delivered the opinion of the Court. Mr. Chief Justice Murray concurred.

The return to the writ shows that the petitioner is held in custody under a warrant of commitment, issued out of the Fourth District Court, in the case of Adams v. Haskell and Woods, directing that said Cohen and Edward Jones be imprisoned until they comply with a certain order of Court, requiring them to deliver to H. M. Naglee, a receiver appointed by said Court, all the books, papers, money and property in their hands belonging to Adams & Co.

And also a certain order of arrest, made by John S. Hager, Judge of [320]the Fourth District Court, in a certain suit pending in said Court, in "which H. M. Naglee is plaintiff and said Cohen is defendant.

In addition to the return of the officer, the petitioner produces as evidence on the hearing of his application, a record of the proceedings in the Court below on his application to be discharged from imprisonment. From this record, it appears that Cohen filed his affidavit in the Court below, setting out a compliance with said order as far as he was able. Certain interrogatories were propounded to him, under the order of the Court, from the answers to which, with the affidavits and statement of accused on file, the Court decreed, “ that said Cohen had not paid over to said receiver, according to the order of the Court, all the moneys received by him as ^ceiver in this action, but had retained a portion of said moneys for his disbursements and compensation; the Court ordered and decided that said Cohen could not be the judge of his own compensation and disbursements, but they must be submitted, and passed upon by the Court and allowed, to entitle him to take them; and in order to be discharged, he must first pay over all said moneys received by him as receiver-—have his accounts passed upon and allowed, and pay over the balance found in his hands.”

By the affidavit of Cohen, which is not contradicted, it appears that the disbursements charged, were made by him in the course of his receivership, and that the money claimed by him as compensation had been used about his own business, and that he had not so much money in his hands, and was, therefore, unable to comply with the order of the Court.

Under our statutes, the power of a Court to punish for a contempt is limited to a fine of five hundred dollars and imprisonment for five days, except when the contempt consists in the omission to perform an act which is yet in the power of a person to perform, in which ease he may be imprisoned till he have performed it. §§ 488 and 489 Prac. Act.