Hendryx v. Fitzpatrick

• Court: U.S. District Court — District of Massachusetts
• Citation: Hendryx v. Fitzpatrick, 19 F. 810 (D. Mass. 1884)
• Decision Date: 02 April 1884
• Parties: HENDRYX and others v. FITZPATRICK.

19 F. 810

HENDRYX and others v. FITZPATRICK.

United States Circuit Court, D. Massachusetts.

April 2, 1884

T. W Porter and J. McC. Perkins, for complainants.

A. H Briggs, for defendant.

Before LOWELL and NELSON, JJ.

LOWELL J.

In this case the defendant was enjoined from infringing a patent pendente lite, because, though the court had serious doubts of its validity, the defendant had himself sold the patent to the plaintiffs for a considerable sum of money, and it was thought no more than justice that he should refrain from violating his own implied warranty until the final hearing. Afterwards proceedings for contempt for a violation of the injunction were prosecuted by the plaintiffs, and after evidence taken and a hearing, the defendant was ordered to pay the fees of the master by a certain day, the costs of the proceedings, and certain profits assessed by the master, by certain other days, and in default of payment to be committed. These last two sums, when paid in, were to be paid out to the plaintiffs. The defendant failed to make the last two payments, and was committed to prison. After he had been in confinement for about two weeks the district judge, with my approval, though I was unable to sit in the case permitted the defendant to go before the master and prove, if he could, in proceedings like those under the poor-debtor law of Massachusetts, that he had no property which he could apply to the payment of his debts. The plaintiffs were duly notified of the hearing before the master and did not attend, and the master admitted the defendant to take the poor-debtor's oath; and thereupon the court discharged him upon his own recognizance.

The plaintiffs now move that the defendant may be recommitted under the original order. They argue that every order since made in the cause is ultra vires and void, because the first order was a final decree in a criminal case, and could not be varied after the term; and because the defendant could only be discharged from arrest by the pardon of the president. It would be a sufficient answer to this argument, that, if the order was a criminal one, having the consequences contended for, the fine should have been made payable to the United States, and the plaintiffs would have no concern with it; but we will explain why all the orders are, in our opinion, proper. The original order was an interlocutory civil order, for the benefit of the plaintiffs; and the commitment was for failure to pay the money, not for the original contempt. While, therefore, the imprisonment may not have been strictly and technically within our poor-debtor law, (Rev. St. Sec. 991,) which, however, we think it was, yet it should, at all events, be governed by similar rules. It was made in this way, because the master found that the contempt was not willful, and I thought that no punishment was necessary. The process of contempt has two distinct functions,-- one, criminal, to punish disobedience, the other, civil and remedial, to enforce a decree of the court and indemnify private persons. In patent causes it has been usual to combine the two, and to order punishment if it is thought proper; or indemnity to the plaintiff, if that is all that justice requires; or both. Re Mullee, 7 Blatchf. 23; Doubleday v. Sherman, 8 Blatchf. 45; Schillinger v. Gunther, 14 Blatchf. 152; Phillips v. Detroit, 3 Ban.& A. 150; Dunks v. Gray, 3 F. 862; Searls v. Worden, 13 F. 716; Matthews v. Spangenberg, 15 F. 813.

We are aware that it was at one time the opinion of Judge BLATCHFORD that a sum of money ordered to be paid to a plaintiff, in a cause of this kind, was a criminal fine, which could only be remitted by a pardon; but we are of opinion that such a fine for the benefit of a private person cannot be remitted by the president, and is a debt of a civil nature; and that Judge BLATCHFORD has so treated it in the latest case which has come before him. His first opinion is stated in Mullee's Case, 7 Blatchf. 23, and Fischer v. Hayes, 6 F. 63; but when the latter case came before the supreme court, they expressed a significant doubt whether the order to pay money for the use of the plaintiff was not an interlocutory decree in a civil cause, (Hayes v. Fischer, 102 U.S. 121;) and when the case came back, Judge BLATCHFORD admitted the defendant to bail, (Fischer v. Hayes, 7 F. 96,) which he could not have done if the judgment were criminal in its nature. The doubt of the supreme court might well have been even more strongly expressed. An order upon a defaulting trustee, assignee in bankruptcy, or other person subject to account, to pay money into court, is civil, and may be waived by the party adversely interested, and is a debt to which a bankrupt law, discharging the debt, and an insolvent law, discharging the person, are applicable.

See Baker's Case, 2 Strange, 1152; Ex parte Parker, 3 Ves. 554; and the decisions hereinafter cited.

In McWilliams' Case, 1 Schoales & L. 169, a defendant in contempt for not paying a legacy into the court of chancery in obedience to its order was attached while attending the commissioner to be examined as a bankrupt. His arrest was lawful, if the contempt was a criminal offense. That very learned chancery lawyer, Lord REDESDALE, said that it was merely a mode of enforcing a debt; that if it were not so he had no right to make the original order; that the substance was not criminal. The petitioner was discharged. The same point was decided in the same way in Ex parte Jeyes, 3 Dea.& Ch. 764; and Ex parte Bury, 3 Mont.D.& D. 309.

The remark of the lord chancellor in McWilliams' Case, that he had no right to make an order of this sort for the benefit of a private person, excepting as a civil remedy, is highly pertinent to this case.

Where a person had been committed to prison for nine months for contempt in not paying money into a county court, sitting in bankruptcy, JAMES, L. J., said: 'The order, on the face of it, is wrong, for it is an absolute order of commitment for contempt of court for non-payment of money. This is a penal sentence. The court of chancery never made an order in this form. ' And again: 'The order of commitment was such as had never been made in the court of chancery, and was justly characterized by the chief judge as novel and surprising. ' Ex parte Hooson, LR. 8 Ch. 231. This distinction is preserved in our Revised Statutes. The courts have power to punish for contempt, (section 725;) but all forms and modes of proceeding which are usual in equity may be followed in cases in equity. Section 913. By virtue of section 725 the district court may punish contempts. Like power is given the district judge when sitting in chambers in bankruptcy, by section 4973; and the cognate but distinct power of enforcing his decree 'by process of contempt, and other 'remedial' process,' is recognized by section 4975. See In re Chiles, 22 Wall. 157. Some of the older cases hold that in contempt in civil cases at common law, the proceedings, after the order of attachment, should be on the crown side of the court; that is, in the name of the sovereign. The King v. Sheriff of Middlesex, 3 Term R. 133; Same v. Same, 7 Term R. 439; Folger v. Hoogland, 5 Johns. 235. This is still the better practice, or, at least, a good practice, if punishment is asked for. Cartwright's Case, 114 Mass. 230; Durant v. Sup'rs, 1 Woolw. 377; U.S. ex rel. v. A., T. & S.F. Ry. Co. 16 F. 853. If this was ever the rule of chancery, it has long since ceased to be so, when the sole purpose of the attachment is to enforce a decree or order, such, for instance, as to sign an answer, to make a conveyance, to pay money, etc. All such orders may be waived or condoned by the private person interested in them, and are civil and remedial. Ex parte Hooson, supra; Ex parte Eicke, 1 Glyn.& J. 261; Wall v. Atkinson, 2 Rose, 196; Wyllie v. Green, 1 De Gex & J. 410; Buffum's Case, 13 N.H. 14; People v. Craft, 7 Paige, 325; Jackson v. Billiags, 1 Caines, 252; Anon. 2 P.Wms. 481; Const. v. Ebers, 1 Mad. 530; Smith v. Blofield, 2 Ves.& B. 100; Brown v. Andrews, 1 Barb. 227; Ex parte Muirhead, 2 Ch.Div. 22; Lees v. Newton, L.R. 1 C.P. 658; Re Rawlins, 12 Law T. (N.S.) 57.

In patent cases it has been usual to embrace in one proceeding the public and the private remedy-- to punish the defendant if found worthy of punishment, and, at the same time, or as an alternative, to assess damages and costs for the benefit of the plaintiff, as is seen by the cases cited in the beginning of this opinion. A course analogous to this has been said, obiter, to be proper, by MILLER, J., in Re Chiles, 22 Wall. 157, 168. 'The exercise of this power has a twofold aspect, namely,-- First, the proper punishment of the guilty party for his disrespect of the court and its order; and, second, to compel his performance of some act or duty required by him by the court which he refuses to perform,' citing Stimpson v. Putnam, 41 Vt. 238, where a defendant was, at the same time, fined $50 for the benefit...