pealed. State ex rel. Edwards v. Davis (1892) 2 N. D. 461, 51 N. W. 942.

In New York a proceeding to punish for an alleged criminal contempt originating in the violation of an injunction in a civil action is held to be a civil special proceeding and appealable. People ex rel. Megus v. Dwyer (1882) 90 N. Y. 402, wherein the court said: "The Revised Statutes distinguished, and the Civil Code preserves the distinction, between criminal contempts and proceedings as for contempt in civil cases. As it respects disobedience to the orders of a court, the sole difference appears to be that a 'wilful' disobedience is a criminal contempt, while a mere disobedience by which the right of a party to an action is defeated or hindered is treated otherwise. The conviction here was for a criminal contempt, the disobedience adjudged wilful, and the permitted punishment imposed. Civ. Code, §§ 8 and 9. It is now said that from such a conviction there is no appeal, because it is not a civil but a criminal special proceeding. It canIt cannot be the latter, for the Code of Criminal Procedure does not recognize or provide for it. That describes what are called 'special proceedings of a criminal nature,' but criminal contempts are not among them. Crim. Code, pt. 6, titles 1 to 11. They appear and are regulated in the Civil Code. When they originate in the violation of an order made, not by a criminal court, but by a civil court in a civil action, it is difficult to see how they can be anything else than the special proceedings defined in the Civil Code as civil special proceedings. That the wilful contempt is denominated 'criminal' does not make the proceeding by a civil court, having before it a civil action, to protect its dignity and compel respect for its mandates, any the less a civil special proceeding. If it is in a court having. only civil jurisdiction, or on the civil side of a court having criminal jurisdiction also, it must be deemed a special proceeding within the meaning of §§ 1356 and 1357 of the Code of Civil Procedure, and § 190, subd. 3, which permit an appeal. But where a crim

inal court makes an order in a criminal proceeding pending before it, which is disobeyed, the process by which it vindicates its authority must be held to be . not a special proceeding, as defined in the Code of Civil Procedure. Possibly in this latter class of cases there is no appeal. If it is best that there should be, the attention of the legislature should be directed to the subject. We, therefore, deny the motion to dismiss the present appeal."

So, it was said in the Tennessee case of Graham v. Williamson (1913) 128 Tenn. 722, 164 S. W. 782: "A motion is now made to transfer the case to the court of civil appeals, on the ground that the controversy is within the jurisdiction of that court. This motion is resisted on the ground that a contempt proceeding is a criminal proceeding, and the court of civil appeals has not jurisdiction of a criminal case. While it is true that a contempt proceeding is of a criminal nature, it is also in the nature of a civil proceeding. By this is meant that proceedings for ascertaining the existence of a contempt may be purely civil in the court in which the contempt arises, but that it is an offense against public justice, and may be proceeded against also by indictment or presentment, and that, whichever form of procedure may be adopted, the punishment is a criminal punishment, which is either by fine or by fine and imprisonment. The fact that the contempt proceeding has this dual nature does not prevent its prosecution in any court wherein a contempt occurs, although it be a court of purely civil jurisdiction. The power of courts to punish for contempt is of immemorial antiquity, and is inherent in all courts as a necessary power belonging to them in order to enable them to accomplish the purposes for which they were designed; that is, the orderly trial and decision of causes, the enforcement of public order, the prevention of interferences with their proceedings, and the enforcement of the due respect belonging to them as institutions of the country. While this power may be regulated by the

legislature, it is not conferred. To what extent the power may be regulated by legislature we need not inquire, as the present case does not raise the question. Inasmuch as the power is inherent in all courts, and each court can conduct such a matter arising in any case before it, it is apparent that the contempt proceeding in the present case was merely an incident to the power of the chancery court in the road controversy, and therefore the jurisdiction on appeal from the decision of that court in the main controversy would control the jurisdiction on the merely incidental matter of a contempt arising in the case. Since the controversy over the road would, under chapter 82 of the Acts of 1907, belong to the court of civil appeals, it follows that the contempt proceeding arising in that case would likewise belong to that court. . . . The motion to transfer must therefore be granted."

View that writ of error lies.

In some jurisdictions a judgment for a criminal contempt for the violation of an injunction may be reviewed on a writ of error. Zimmerman v. State (1895) 46 Neb. 13, 64 N. W. 375; State v. Knight (1893) 3 S. D. 509, 44 Am. St. Rep. 809, 54 N. W. 412, 9 Am. Crim. Rep. 221; Baltimore & O. R. Co. v. Wheeling (1855) 13 Gratt. (Va.) 57; State ex rel. Rodd v. Verage (1922) 177 Wis. 295, 23 A.L.R. 491, 187 N. W. 830. See also Craig v. McCulloch (1882) 20 W. Va. 148.

Thus, in Baltimore & O. R. Co. v. Wheeling (1855) 13 Gratt (Va.) 57, supra, wherein the defendant had been adjudged in contempt for the violation of an injunction, the court said: "As to the order of the circuit court in the proceeding for contempt, it is not an interlocutory order made in the cause, much less an order adjudicating the principles of the cause. A contempt of court is in the nature of a criminal offense, and the proceeding for its punishment is in the nature of a criminal proceeding; the judgment in such a proceeding can be reviewed by a superior tribunal only by writ of error, and not always in that way."

28 A.L.R.-5.

In Ohio, where a contempt proceeding is regarded as quasi criminal in its nature, it is held that under Rev. Stat. § 5649, providing that "the judgment and orders of a court or officer made in cases of contempt may be reviewed on error," the supreme court has appellate jurisdiction in such cases without respect to the fine imposed. Brimson v. State (1900) 63 Ohio St. 347, 58 N. E. 803.

In Iowa, where a contempt proceeding for the violation of an injunction is regarded as quasi criminal, the Code (§ 4468) provides that "the proceeding to punish a contempt of process, though based upon, is merely incidental to, and to a great extent independent of, the original proceeding in which it may be invoked. Indeed, such proceeding need not be entitled as of the original cause." This provision has been held to extend to contempts by a disobedience of an injunction. First Cong. Church v. Muscatine (1856) 2 Iowa, 69.

In effect, however, the Iowa statute places certiorari proceedings on the same plane as appeals, and therefore in such statutory proceedings the correctness of a contempt decree may be reviewed. Russell v. Anderson (1909) 141 Iowa, 533, 120 N. W. 89; Ford v. Oliver (1910) - Iowa, —, 124 N. W. 1067; Hagedorn v. Rockafellow (1920) 190 Iowa, 553, 180 N. W. 688.

The statute was construed in Lindsay v. Clayton Dist. Ct. (1888) 75 Iowa, 509, 39 N. W. 817, a case wherein the court refused to punish the defendant. It was said: "As no appeal lies, the judgment of the district court must be reviewed in a certiorari proceeding if it can be done at all. The proper construction of the statute, we think, is that the action of the court may, in a proper case, be so reviewed; that is, the proceedings may be reviewed, whether the defendant has or has not been punished, in all cases when a substantial right, either public or private, is involved, which can only be protected or enforced by the proceeding in contempt." View that certiorari lies.

In Minnesota a conviction for a criminal contempt is not appealable,

but may be reviewed by certiorari. Red River Potato Growers Asso. (1915) 128 Minn. 153, 150 N. W. 383; Campbell v. Motion Picture Mach. Operators (1922) 151 Minn. 238, 186 N. W. 787.

III. Rule in Canada.

In Canada a conviction for the disobedience of an injunction issued for the protection of private rights of a party to the cause has been held to be appealable, as not being a "criminal matter" within the meaning of the British North America Act, denying appeals in such cases. CopelandChatterson Co. v. Business Systems Co. (1908) 16 Ont. L. Rep. 481, wherein the court said: "The first question for consideration is whether this court has power to entertain this appeal; and that, as it seems to me, depends mainly on the question whether the subject-matter of it is, or is not, a 'criminal matter' within the meaning of those words as used in § 91, subsec. 27, of the British North America Act 1867; and, under it, placed within the exclusive legislative authority of the Parliament of Canada. The exclusion of 'practice or procedure in criminal matters' from the operation of 'the Judicature Act'-see § 191-and of 'the Consolidated Rules of Practice of the Supreme Court of Judicature for Ontario,-see rule 4,was, in my opinion, intended to affect, and does affect, only such matters as are beyond provincial legislative authority; and, in my opinion, such legislation and such rules apply to all matters within such legislative authority, by whatever name they may be called. That that is so is exemplified every day by the application of the act and of the rules to the thousand and one cases of offenses against provincial laws and local municipal by-laws, which may, I think, be properly called provincial crimes, notwithstanding notwithstanding the aversion to the use of the latter word for fear of coming in even seeming conflict with the provisions of § 91, subsec. 27, of the British North America Act 1867. But, under the legislative authority, by that act assigned exclusively to the provinces, is

the power to impose punishment by fine, penalty, or imprisonment, for enforcing any law made in relation to any matters within provincal legislative authority. So that many things which are in reality crimes, however much one may struggle to apply some other appropriate word to them, are created by provincial legislation, though quite without the meaning of the criminal law and practice and procedure in criminal matters placed within the exclusive legislative authority of the Parliament of Canada, and are not excluded from the Judicature Act or the Consolidated Rules. In other words, in my opinion, a criminal matter, if beyond provincial legislative authority, is excluded from the act and rules, but, if within such authority, is within them. All of which, as applied to this case, means that, if the procedure for breach of the injunction which is in question in this appeal were in a criminal matter, such as is assigned exclusively to Federal legislative authority, no appeal lies under the act and rules; whilst if it were not, they apply, and an appeal lies just as it does in every like case. The decisions in England require much consideration, and can be applied safely only with much discrimination, for at least two obvious reasons: (1) They interpret an enactment different in several respects from those upon which this case depends, and (2) there are decisions and decisions as well as 'contempts and contempts.' The imperial enactment excludes the jurisdiction of the court of appeal in any criminal cause or matter' in very unmistakable language, thus: "The determination of any such question by the judges of the said high court in manner aforesaid shall be final and without appeal; and no appeal shall lie from any judgment of the said high court in any criminal cause or matter;' . . . and it has been said in the court of appeal in England, in regard to this enactment, that 'the result of all the decided cases is to show that the words "criminal cause or matter"

should receive the widest possible interpretation. The intention was that

no appeal should lie in any "criminal matter" in the widest sense of the term, this court being constituted for the hearing of appeals in civil causes and matters.' Ex parte Woodhall (1888) L. R. 20 Q. B. Div. (Eng.) 832, 57 L. J. Mag. Cas. N. S. 71, 59 L. T. N. S. 841, 36 Week. Rep. 655, 52 J. P. 581-C. A. Plainly, I think, all that is inapplicable to the words 'the practice or procedure in criminal matters,' as used in the Judicature Act and in the Consolidated Rules of this province; where it seems very plain to me that they were used for the one purpose of avoiding any invasion of the exclusive legislative authority of the Parliament of Canada; it seems to me quite impossible to consider that they were meant to exclude, or do exclude, that large class of cases arising daily such as I have had the temerity to call provincial crimes, and to leave them without any sort of written rules or practice; none under the Criminal Code or other Federal legislation because within the exclusive authority of provincial legislation, and none under the latter legislation because senselessly excluded from its nearly two hundred sections and over twelve hundred rules. The words 'criminal matters,' which we have to interpret, therefore, seem to me to comprehend only matters which are criminal in the strict meaning of that word-criminal matters such as are under the British North America Act 1867, committed to the exclusive authority of the Parliament of Canada. Generally speaking,

it is said that contempt of court is a criminal offense or matter, and that is no doubt so when speaking of contempt of court pure and simple and in the popular acceptation of the term; but, as has been said, there are contempts and contempts, and some are entirely civil in their character, to which civil proceedings only are applicable. . . . It is necessary, then, to consider the character of the disobedience, or contempt of court, in this case. . . . The writ of sequestration which was directed to issue against them was a writ commonly employed in the court of chancery for

the enforcement of civil rights. The defendant's answer to the application was that, upon the proper construction of the judgment against them, they had not been guilty of any disobedience, and that in any case they had acted in good faith and upon the advice of counsel, and that if they had erred they regretted it and were ready and willing to yield obedience to the judgment at the trial as the court might interpret it. The learned chief justice of the court of exchequer, before whom the application was heard, considered that there had been a breach of the injunction, for which there was no justification; and directed that, unless the defendants complied with certain terms which he . imposed, an order for a writ of sequestration should go. The formal order made upon the application declares, among other things, 'that the plaintiffs are entitled to the issue of an order for a writ of sequestration as claimed in the notice of motion served,' and orders the same accordingly, but goes on to provide that the defendants may elect to 'present an apology to the court,' and 'pay into court by way of fine a sum equal to their profits accruing from sales made in breach of the said injunction down to the 4th day of March, 1907, and that if such profits shall be found to amount to less than $250, then that they should pay a fine of $250, and that although the amount of the fine is to be a sum equal to the profits, its payment is not to be regarded as a disposition of the profits themselves;' and then further provides that in default of such election the writ of se

questration should issue, and that the defendants should forthwith, after taxation, pay the costs of the motion as between solicitor and client. No further disposition of, or direction as to, the proposed fine, is made; but, as it is to be paid into court, the intention must have been, if the matter was thought of at all, that it should be subject to the power of the court, and so might be awarded to the plaintiffs for any loss which they might have sustained by reason of the breach of

The facts are stated in the opinion Messrs. Fraser & Fraser, for appellants:

An automobile is not a wagon and is not exempt from levy and sale.

Dingman v. Raymond, 27 Minn. 507, 8 N. W. 597; Allen v. Coates, 29 Minn. 46, 11 N. W. 132; Kimball v. Jones, 41 Minn. 318, 43 N. W. 74; Shadewald v. Phillips, 72 Minn. 520, 75 N. W. 717; Re Wilder, 221 Fed. 476; Prater v. Riechman, 135 Tenn. 485, 187 S. W. 305; Doherty v. Ayer, 197 Mass. 241, 14 L.R.A. (N.S.) 816, 125 Am. St. Rep. 355, 83 N. E. 677; Crown Laundry & Cleaning Co. v. Cameron, 39 Cal. App. 617, 179 Pac. 525; Stanton v. French,

of the court.

91 Cal. 276, 25 Am. St. Rep. 174, 27 Pac. 657.

Messrs. M. D. Halloran and William B. Richardson also for appellants.

Messrs. Mohn & Mohn, for respond

ent:

Plaintiff's automobile was exempt under the statute providing that one wagon, cart, or dray shall be exempt from execution sale.

39 Cyc. 1125; Spikes v. Burgess, 65 Wis. 428, 27 N. W. 184; Nichols v. Claiborne, 39 Tex. 363; Fifth Ave. Coach Co. v. New York, 194 N. Y. 19, 21 L.R.A. (N.S.) 744, 86 N. E. 824, 16