L. 1909, ch. 14 Bill of Rights §§ 13, 14 In a criminal prosecution for false registration, the accused must be confronted with the witnesses against him, and failure of accused to become a citizen by taking out naturalization papers cannot be shown by certificate of the record by the clerk of the court, but must be proved by the appearance of the witness in court. People v. Bromwich, (1911) 200 N. Y. 385, 93 N. E. 933, affirming 135 App. Div. 67, 119 N. Y. S. 833. § 13. Right to serve on juries.- No citizen of the state possessing all other qualifications which are or may be required or prescribed by law, shall be disqualified to serve as grand or petit juror in any court of this state on account of race, creed or color, and any person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid shall, on conviction thereof, be deemed guilty of a misdemeanor and be fined not less than one hundred dollars nor more than five hundred dollars or imprisoned not less than thirty days, nor more than ninety days, or both such fine and imprisonment. This is substantially section 3 of L. 1895, ch. 1042. The Act of Congress of March 1, 1875, ch. 114, 18 Stat. L. 336, 4 Fed. Stat. Annot. 740, provides as follows: "That no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude; and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than five thousand dollars." This Act was held to be constitutional by the Supreme Court of the United States in Ex p. Virginia, (1879) 100 U. S. 339, wherein a state judge was charged with excluding or failing to select as grand and petit jurors certain citizens of the African race. The court held that the provisions of the Act applied to the selection of jurors in the state as well as the federal courts, and officers of a state court in selecting jurors, although they derive their authority from the state, are bound to obey this statute. See also County Judges of Virginia, (1873) 3 Hughes 576, 30 Fed. Cas. No. 18,259. § 14. Jurors not to be questioned for verdicts.—A juror shall not be questioned, and is not subject to an action, or other liability civil or criminal, for a verdict rendered by him, in an action in a court of record, or not of record, or in a special proceeding before an officer, except by indictment, for corrupt conduct, in a case prescribed by law. This section was formerly section 1192, Code Civ. Proc. § 20 Privilege from Arrest L. 1909, ch. 14 ARTICLE 3 PRIVILEGE FROM ARREST Section 20. No imprisonment for non-payment of costs in certain cases. 21. No imprisonment for non-payment of money pursuant to judgment or order requiring payment of money due upon contract. 22. Privilege of officers and prisoner from arrest while passing through another county. 23. No person to be arrested in civil proceedings without a statutory provision. 24. Privilege from arrest of officers of courts of record. 25. Witness exempt from arrest. 26. Action against officer making arrest of exempt person. § 20. No imprisonment for non-payment of costs in certain cases. A person shall not be arrested or imprisoned, for the non-payment of costs, awarded otherwise than by a final judgment, or a final order, made in a special proceeding instituted by state writ, except where an attorney, counselor, or other officer of the court, is ordered to pay costs for misconduct as such, or a witness is ordered to pay costs on an attachment for non-attendance. This section was formerly section 15, Code Civ. Proc. Liability of assignee for costs.— This section did not repeal section 321 of the former Code of Procedure, which made an assignee of a pending action liable for costs; but a capias ad satisfaciendum against the assignee for the payment of costs is not issuable. Under that section, it was held that the process issued should be a bailable attachment, returnable before the court, and on its return the court should examine whether the party wrongfully refused to pay the costs. Morrison v. Lester, (1878) 15 Hun 538. Costs in tort action. In an action of tort, where the defendant is liable to arrest and imprisonment if the plaintiff succeeds, a final judgment in favor of the defendant dismissing the complaint and awarding costs may be enforced by execution against the person. Saffier v. Haft, (1903) 86 App. Div. 284, 83 N. Y. S. 763. In an action of tort where the costs exceed the amount of the verdict awarded the plaintiff, and a judgment for the excess of costs above the verdict is entered in favor of the defendant, the plaintiff can be imprisoned under an execution issued against his person upon such judgment. "By section 1487 of the Code of Civil Procedure an execution against the person is permitted where the plaintiff's right to arrest the defendant depends upon the nature of the action. This was such an action, being one strictly for a tort which was set out in the complaint. The Nonimprisonment Act does not free the plaintiff from arrest, because the action is not upon a contract. The Code gives a L. 1909, ch. 14 Privilege from Arrest § 20 right of arrest in actions of tort against a defendant. In case of failure to maintain the action, it has been repeatedly held that an execution against the person of the plaintiff was proper for the costs. Here there was a recovery, but not of sufficient amount to carry costs in favor of the plaintiff. The plaintiff was therefore bound to pay costs." Philbrook v. Kellogg, (1880) 21 Hun 238. Contempt proceedings against an administrator.- Proceedings for contempt may not be had against an administrator to collect motion costs, awarded against him. The proper mode of collection is by an execution under sections 779 and 2556 of the Code of Civil Procedure. Matter of Lippincott, (1886) 5 Dem. 299. Guardian ad litem.- In a tort action brought by a guardian on behalf of his ward, where the case is dismissed and an execution, issued against the estate of the guardian, is returned unsatisfied, execution may be issued against the guardian's person for costs, awarded the defendant, without application being made to the court. "The action was brought for a wrong, upon which, if the plaintiff had recovered, an execution against the person of the defendant might have been issued (Code of Civ. Proc. § 1487). And as the plaintiff failed to recover finally in the action, the defendant was entitled to an execution of this description for the collection of the costs recovered by him." Miller v. Woodhead, (1889) 52 Hun 127, 5 N. Y. S. 88. The compensation allowed a guardian ad litem for representing an infant cannot be collected by contempt proceedings but may be collected out of the infant's estate. "The order in question was an adjudication by the court between the guardian and his ward, so far as the question of compensation is concerned, and the amount thus fixed is a claim against the estate of the infant, for the collection of which the Code provides a suitable remedy. Code Civil Proc. §§ 15, 779. Such being the case, the guardian must avail himself of that remedy, and, in the opinion of the court, cannot proceed against the defendants for a contempt in case of their refusal to pay upon his demand." Richardson v. Van Voorhis, (1888) 51 Hun 636 mem., 3 N. Y. S. 396. Nonpayment of costs in action to annul conveyance.- In an action to annul a conveyance fraudulently obtained, where a judgment has been awarded in favor of the plaintiff, with costs, an execution may issue against the person of the defendant, under subdivision 4 of section 550 of the Code of Civil Procedure, for the collection of costs. "It is not to be supposed, in view of the careful provisions which have been made upon this subject, that the legislature intended to relieve a person who had fraudulently deprived another of his or her property from liability for final arrest after that fact had been necessarily determined against him by the final decision of the action. But the purpose of the law has been, where the fact has been so adjudicated, to render him liable for final arrest, for the reason that the nature of the action itself, and its necessary determination, must conclusively establish the fact that he has been guilty of a wrong for which the plaintiff should be secured this mode of redress. The execution in this case was justified by the authority of subdivision 4 of section 550 of the Code. It was an action where the nature of the subject was that of a legal wrong, for the complete redress of which, and the collection of the expenses necessarily incurred in prosecuting the suit, the plaintiff has become entitled to proceed against the defendant's person." Smith v. Duffy, (1885) 37 Hun 506. Surrogate's decree for costs.- A surrogate's decree directing the payment of costs cannot be enforced by imprisonment. "Section 15 relates to costs, and to costs alone, and prohibits imprisonment for their collection. Section 2555 relates to decrees of Surrogates' Courts directing the payment of money or the performance of any other act, and is not at all in conflict with section The two provisions can have full force and effect and stand together. 15. § 21 Privilege from Arrest L. 1909, ch. 14 If the decree in the surrogate's court simply directs the payment of costs and nothing else, imprisonment cannot follow, under the provisions of section 15." In re Humfreville, (1897) 154 N. Y. 115, 47 N. E. 1086, reversing 19 App. Div. 381, 46 N. Y. S. 439. Liability of attorney for costs. An attorney is not liable to arrest for nonpayment of costs awarded against him on the determination of an appeal from an order, where he has refused to deliver, to the substituted attorney succeeding him, a copy of the entries in the register kept by him, showing what had taken place in the litigation up to the time of the substitution. "He did not misconduct himself in endeavoring to sustain the order. He was entirely justifiable in so doing, by the order which had been made in his favor, from which the appeal was taken. And the adjudication made by the court reversing the order contains no intimation that either his refusal to furnish a copy of his entries or such resistance to the appeal was, in any respect, considered to be improper. As no actual misconduct could be affirmed simply from the effort made to sustain the order from which the appeal had been taken, the attorney is not liable to personal arrest or punishment for the failure to pay the costs and disbursements recovered against him." Mack v. Cohen, (1882) 27 Hun 463. An attorney, who, from improper motives, institutes disbarment proceedings against another attorney, is guilty of such misconduct as to render him liable to have the cost of the proceedings awarded against him, and may be imprisoned for nonpayment of such costs; and the fact that he is acting for himself in the proceedings is immaterial. "The institution of such a proceeding without grounds, and the prosecution of it with improper motives, is misconduct in an attorney for which the court may impose costs upon him, and the order shows that the costs in question were imposed for such misconduct." In re Kelly, (1875) 62 N. Y. 198. Sheriff's fees. Upon the vacation of an attachment, the fees of a sheriff for executing the attachment cannot be collected by contempt proceedings. "In regard to the motion to punish the plaintiff for contempt in not paying the costs ordered to be paid by the plaintiffs to the defendants, I think there is too much doubt in relation to the law to warrant or justify me in signing an order to arrest and imprison the plaintiffs. It is a harsh and severe remedy and should not be resorted to or applied except in a clear case." Hall v. United States Reflector Co., (1883) 4 Civ. Pro. 148. § 21. No imprisonment for non-payment of money pursuant to judgment or order requiring payment of money due upon contract. Except in a case where it is otherwise specially prescribed by law, a person shall not be arrested or imprisoned for disobedience to a judgment or order, requiring the payment of money due upon a contract, express or implied, or as damages for non-performance of a contract. This section was formerly section 16, Code Civ. Proc. Scope of section. This section does not apply to tort actions; hence a defendant is not protected from arrest where the affidavit, presented for the purpose of obtaining a warrant, shows that a judgment has been rendered against the defendant for fraudulently obtaining money in violation of an injunction; but such an affidavit gives the court no jurisdiction to issue a warrant of arrest under the provisions of the act "to abolish imprisonment for debt," etc. (Chap. 300, Laws 1831). People v. Speir, (1879) 77 N. Y. 144, 57 How. 274, reversing 12 Hun 70. L. 1909, ch. 14 Privilege from Arrest § 22 Arrest of bailee. Where the plaintiff's declaration contains four counts, the first two setting out a contract and the last two founded on the contract implied by law between bailor and bailee, and a general verdict is obtained against the defendants, the imprisonment of one of them on a capias ad satisfaciendum is unlawful under 1 R. S. 807 (2d ed.), sec. 1, and such defendant must be discharged. Brown v. Treat, (1841) 1 Hill 225. Default of attorney in repaying costs.- An attorney who has received money, in payment of costs in a previous action, through an order, which has been reversed, may be compelled to make restitution by order and attachment. "It has been the uniform practice of the courts to exercise summary jurisdiction over the conduct of parties and attorneys, in actions pending in court, and enforce obedience to orders and directions made by it, in the interest of fair dealing and honesty, to protect all parties or persons whose rights have been affected by the litigation. Both parties and attorneys who, through the aid of the court, have come into possession of property or money during a litigation, which subsequent proceedings in the action show was either wrongfully acquired or unjustly retained, may be compelled to restore it to the rightful owner by order and attachment to enforce such restoration." Forstman v. Schulting, (1888) 108 N. Y. 110, 15 N. E. 366, 13 N. Y. St. Rep. 483, affirming 42 Hun 643, 4 N. Y. St. Rep. 463. Failure of purchaser to complete foreclosure sale.— A purchaser at a foreclosure sale, who fails to complete the sale in accordance with the court's order, may be punished for contempt. "A motion to complete the sale is substantially a summary proceeding to compel the specific performance of the contract of the bidder to buy, and to a very considerable extent it stands upon the same footing and is to be decided by the same equitable considerations as an action for that purpose; and whether, upon such a motion, the court will direct the purchaser to complete the sale, or will direct a resale to be had at the expense of the purchaser, is largely in its discretion. But when the purchaser has an opportunity to appear upon such a motion and to urge upon the court the equitable considerations which should induce it to refuse to order a completion of the sale and to grant the plaintiff relief in some other way, he has had his day in court upon that subject, and whatever conclusion the court reaches is binding upon the purchaser, and he is bound to obey it precisely as the purchaser in an ordinary contract would be bound to obey a judgment for its specific performance." Burton v. Linn, (1897) 21 App. Div. 609, 47 N. Y. S. 835, reversing 21 Misc. 266, 47 N. Y. S. 693. But a purchaser of property at a foreclosure sale, who defaults in payment, is not liable as for a contempt upon failure to pay the deficiency resulting from a resale of the property in consequence of his default. Betz v. Buckel, (1893) 30 Abb. N. Cas. 278, 24 N. Y. S. 487. § 22. Privilege of officers and prisoner from arrest while passing through another county.-A prisoner conveyed to jail through another county pursuant to section one hundred and eighteen of the code of civil procedure, or the officer having him in custody, is not liable to arrest in any civil action or special proceeding, while passing through another county. The substance of this section was contained in Code Civ. Proc. § 119. Section 118 of the Code provides for conveying a prisoner to jail through another county. Liability for violation of section. A person arrested in one county, and being conveyed through a second county under the conditions of this section, |