PERJURY AS CONTEMPT,-continued.

direction of the court. The payment and accepance of such a fine constitutes a bar to an action by the aggrieved party to recover damages for the loss or injury. Where it is not shown that such an actual loss or injury has been produced, a fine must be imposed, not exceeding the amount of the complainant's costs and expenses, and two hundred and fifty dollars iv addition thereto, and must be collected and paid, in like manner. А согрогаtion may be fined as prescribed in this section.

The punishment will be governed by the extent of injury suffered by leason of the perjury.

Eagan v. Lynch, 40 Super. 454; 3 Civ. Pro. 236.

Stephenson v. Ranson, 6 Civ. Pro. 43.

Thus, where the sureties upon an undertaking, given to procure an order of arrest, were guilty of perjury in the aflidavit of justification, it is proper to impose a fine upon them of $270.18 and interest, such sum being the amount of the recovery by defendant upon the undertaking.

Keating v. Goddard, 8 Civ. Pro. 377.

Likewise, a fine of $677.17, being the amount of a judgment, less pay. ment of $50, which was recovered upon a worthless bond given upon an ap peal, together with imprisonment for 3 months unless such fine be paid sooner, is a proper punishment upon the surety committing the perjury. Diamond v. Knoepfel, 3 St. Rep. 291.

So, in a proceeding to punish worthless sureties upon a bond to procure an order of arrest in an action, a fine of $772.50, the defendant's costs awarded to him upon the plaintiff's default in the action, and imprisonment for 6 months and until the payment of such fine, is proper. Eagan v. Lynch, 49 Super. 454; 3 Civ. Pro. 236.

Likewise, where the affidavit of justification of a surety, upon a bond for an order of arrest, was false, it is proper to impose as punishment upon such surety a fine of $281.65; being the recovery upon such undertaking, with $50 counsel fees in the proceeding and commitment to prison until payment of the whole.

Stephenson v. Hanson, 6 Civ. Pro. 43.

The court has no power to impose a fine of more than $250 with complainant's costs and expenses for a civil contempt of the class in question, in the absence of proof before the court showing that the complainant sustained damage in a larger amount. Moffat v. Herman, 116 N. Y. 131; 22 N. E. 237.

A person may be punished for contempt in a civil proceeding, although two years have elapsed since the commission of the perjury and on that ac count criminal proceedings are barred.

Matter of Hay Foundry & Iron Works, 22 App. Div. 87; 81 St. Rep. 802; 47 Supp. 802.

The court will not refuse to impose punishment for the misconduct, on account of the fact that the offender has been previously convicted of perjury and undergone punishment therefor, but the latter will be taken into account by the court in pronouncing sentence.

Eagan v. Lynch, 49 Super. 454; 3 Civ. Pro. 236.

DAILEY v. FENTON.

[47 App. Div. 418; 96 St. Rep. 337; 62 Supp. 337.]

(Supreme Court, Appellate Division, Second Department. January 23,

1900.)

1. SHERIFFS-DUTIES-ATTACHMENT-REFUSAL

DAY.

TO RECEIVE-HALF-HOLI

Code Civ. Pro. § 644, requires a sheriff to "immediately" execute a warrant of attachment placed in his hands; and Laws 1892, c. 686, as amended by Laws 1895, cc. 150, 718, authorizes him to close his office on holidays and half holidays. Held, that a sheriff was not justified in refusing to receive and serve an attachment offered to him for service be

NOTE.-SATURDAY HALF-HOLIDAY.

a. Statutes.

b. Sessions of Courts..

c. Service of process and papers.

d. Presentment of negotiable instruments.

a. Statutes.

The term, half-holiday, includes the period of time from noon to mid night of each Saturday which is not a holiday. Such half-holidays shall be considered the same as Sundays and holidays for all purposes whatsoever as regards the transaction of business in the public offices of the state and counties.

Statutory Construction law, § 24, as amended by chap. 614, laws of 1897. Public Officers law, § 41.

Clerks of counties, courts of record, and registers of deeds are not required to keep their offices open on half-holidays.

County law, § 165, as amended by laws of 1895, chaps. 144 and 961.

tween 3 and 4 o'clock on a Saturday afternoon, in a village where the property to be seized was situated, since the half holiday law did not deprive him of his official powers, or relieve him of his obligation to perform any official duties on Saturday afternoons which could be discharged outside his office.

2. CONTEMPT-POWER TO PUNISH-MISCONDUCT OF SHERIFF-ADJUDICATION.

Code Civ Pro. § 2281, provides that one accused of a civil contempt may be punished "if it is determined that he has committed the offense charged," etc., and that it was calculated to or did defeat, impair, impede, or prejudice the rights or remedies of the complaining party, etc. Held, that where a sheriff charged with official misconduct in refusing to execute an attachment denied the charge on return of the order to show cause why he should not be punished therefor, and the record on appeal from an order fining him for official misconduct failed to show

SATURDAY HALF-HOLIDAY,-continued.

Sheriffs need not keep their offices open on half-holidays.

County law, § 184, as amended by laws of 1895, chaps. 150 and 718.
A bill cannot be presented for acceptance on a half-holiday.

Negotiable Instruments law, § 243.

Negotiable instruments payable on demand cannot be presented for payment on half-holidays. Instruments falling due or becoming payable on Saturdays which are not entire holidays, cannot be presented for payment till the next succeeding business day.

Negotiable Instruments law, § 145, as amended by laws of 1898, chap. 336, § 13.

b. Sessions of courts.

In People v. Kearney, 47 Hun, 129; 13 St. Rep. 246, the trial had been in progress on Saturday morning prior to twelve o'clock noon, but the case was not submitted to the jury until after that hour. This the defendant claimed was error Martin, J., said, "The question presented is whether a court is a public office, within the intent and meaning of this statute. It cannot be properly said, we think, that a court is a public office. A court is a tribunal established for the administration of justice. While a judicial of ficer may be a public officer, still, to speak of a court as a public office, would be to give to the term an unusual and extraordinary meaning. The words of a statute are to be taken in their ordinary and familiar signification and import and regard is to be had to their general and proper use. Giving, then, to the words; 'public offices of the state or counties of this

any adjudication that he had committed the offense, or that plaintiff's rights were in any manner impaired by his acts, the order imposing such fine will be reversed.

Appeal from special term, Nassau county.

Action by Elizabeth A. Dailey against Helen M. Fenton. From an order imposing a fine on the sheriff, William H. Wood, for official misconduct in the case, he appeals. Reversed.

Argued before GOODRICH, P. J., and BARTLett, Hatch, WOODWARD, and HIRSCHBERG, JJ.

George B. Stoddart, for appellant.

Abraham H. Dailey, for respondent.

WILLARD BARTLETT, J. If the facts are correctly stated in the motion papers of the plaintiff, the sheriff of Nassau county was not justified in refusing to receive and serve the warrant of

SATURDAY HALF-HOLIDAY,-continued.

state', their ordinary and familiar signification, they would not include a court. They obviously relate to the buildings or rooms occupied by officers of the state or county, who are required to keep public offices for the transaction of their business as such officers. This view is rendered quite manifest by the last sentence of the provision of the statute above quoted; 'that on all other days or holidays excepting Sunday, such offices shall be open for the transaction of business.' If the claim that a court is a public office within the intent and meaning of this provision, be correct, then, it must follow that by virtue of the last provision all courts of every grade and character are required to be kept open on all days, except Sundays, and the days and half days mentioned in the statute. Surely such was not the intent of the law. This statute properly construed does not, we think, prohibit the holding of courts after twelve o'clock, M., on Saturdays."

This was a criminal case and the conviction which was affirmed by the general term was reversed by the court of appeals, 110 N. Y. 188; 17 N. E. 736, without noticing the question with regard to the submission of the case to the jury on a half-holiday, which was discussed by Martin, J. at the general term.

attachment in this action. According to the allegations in those papers the attachment, which was to be levied upon property in the village of Sea Cliff, was offered to the sheriff in the same village between 3 and 4 o'clock on the afternoon of Saturday, September 2, 1899, when the sheriff declined to receive the same, saying that he would not receive it, but would either go himself, or send a deputy, to see one of the plaintiff's attorneys later in the day, which promise, however, he failed to keep. Where attachment papers are placed in the hands of the sheriff, the law expressly requires that he "must immediately execute the warrant." Code Civ. Proc. § 644. The general rule is that a sheriff is responsible for not reasonably executing such process as is lawfully tendered to him for service. Whitney v. Butterfield, 13 Cal. 335, 340. It was held in the case cited that a statutory command to execute process "without delay" does not

SATURDAY HALF-HOLIDAY,—Continued.

A precept in summary proceedings for the removal of a tenant which is returnable after 12 o'clock M. on Saturday is regular and the justice has jurisdiction to make a final order thereon.

Carey v. Reilly, 80 St. Rep. 449; 46 Supp. 449.

In the case last cited, McAdam, J. said, "The court is not a public office within the meaning of the act...... The Saturday half-holiday is not dies non juridicus and does not prevent the courts from continuing their sessions and performing any judicial business which may come before them." The service of a summons on the Fourth of July is not illegal. Slater v. Jackson, 25 Miss. 783; 89 St. Rep. 581; 55 Supp. 581.

A notice of motion returnable upon the first Monday in September or Labor Day is regular.

Berthold v. Wallach, 14 Misc. 55; 69 St. Rep. 563; 35 Supp. 208.

c. Service of process and papers.

In Nichols v. Kelsey, 2 City Ct. 410; 13 Civ. Pro. 154; 20 Abb. N. C. 14, Mc Adam J., held that service of motion paper on a half-holiday was proper and sufficient. (N. Y. Special Term, May, 1887.)

The learned justice said, "The recent half-Saturday holiday does not prevent the service of papers or the execution of writs in legal proceedings on that day or any part of it."