not as a definitive adjudication, but as an interlocutory order, and this in spite of the fact that it was made after hearing upon a previous order to show cause.

Thus

From an early day the practice in contempt proceedings has varied, according to the circumstances of different cases. Mr. Justice Blackstone says (referring, however, more particularly to cases where only the dignity of the court is involved, and not to those where rights of the opposite parties are concerned):

"If the contempt be committed in the face of the court the offender may be instantly apprehended and imprisoned, at the discretion of the judges, without any further proof or examination. But in matters that arise at a distance, and of which the court cannot have so perfect a knowledge, unless by the confession of the party or the testimony of others, if the judges upon affidavit see sufficient ground to suspect that a contempt has been committed, they either make a rule on the suspected party to show cause why an attachment should not issue against him, or in very flagrant instances of contempt the attachment issues in the first instance, as it also does if no sufficient cause be shown to discharge, and thereupon the court confirms and makes absolute the original rule. This process of attachment is merely intended to bring the party into court, and when there he must either stand committed or put in bail, in order to answer upon oath to such interrogatories as shall be administered to him for the better information of the court with respect to the circumstances of the contempt. These interrogatories are in the nature of a charge or accusation, and must, by the course of the court, be exhibited within the first four days; and if any of the interrogatories is improper the defendant may refuse to answer it, and move the court to have it struck out." 4 Bl. Com. 286, 287.

In this extract reference is made, as will be observed, to the practice of issuing an attachment upon making absolute the rule to show cause, the same practice that was adopted in the present instance. A notable instance of this practice is Rex v. Beardmore, 2 Burr. 792 (1759).

So in the Cheeseman Case, 49 N. J. Law (20 Vr.) 115, 142, Mr. Justice Dixon said, speaking for the supreme court: "No doubt the ordinary course of practice in such cases in courts of law is that an affidavit of the facts should first be presented; then that a rule should be entered requiring the alleged offender to show cause why he should not be attached for contempt; then, if good cause be not shown, that an attachment should

issue, and the accused, on being brought in, should be either held to bail or committed to answer interrogatories; then, that interrogatories should be exhibited and answered; and thereupon, according as his answers confess or deny his guilt, he should be punished or discharged. But the practice has not been uniform. Sometimes a rule to show cause has been allowed without an affidavit, on a mere suggestion; sometimes an attachment has issued without a rule to show cause; sometimes punishment has been inflicted forthwith on the offender's confession when brought in by the writ, without interrogatories, and sometimes, as in McQuade v. Emmons, 38 N. J. Law (9 Vr.) 397, the penalty has been imposed on the offender's admissions made under the original rule, without either writ or interrogatories."

Nor need we go to the extent of declaring that the alleged contemnor has the right to exculpate himself by his answers to the interrogatories, so that an adjudication of guilt made without the exhibition of interrogatories or contrary to his responses thereto, would be beyond the jurisdiction of the court, as intimated, arguendo, in the opinion last cited. The cases referred to by Mr. Justice Blackstone upon this head are authorities to the effect that the courts of law in ordinary cases would not, rather than that they could not lawfully, fine or imprison for contempt of court, without according to the accused the opportunity of exculpating himself by making response to interrogatories. It is true he does plainly say (4 Bl. Com. 288) that the method of examining the delinquent himself upon oath, with regard to the contempt alleged, has, by long and immemorial usage, become the law of the land. But the cases he refers to hardly bear him out in declaring this to be the invariable practice, nor warrant the conclusion that the courts of law have no power to punish for contempt contrary to the sworn denial of the accused on the return of the attachment.

Moreover, as Blackstone himself observes (4 Bl. Com. 288) in the court of chancery the answers of the alleged contemnor were subject to be contradicted. Even in the courts of law it is not clear that in proceedings having for their object the

enforcement of the rights of a litigant (as the performance of an award, or the like), the party in contempt could ever gain his discharge by a mere denial under oath.

Whatever may be the correct view of these matters, it is certain that the practice of submitting interrogatories upon the return of an attachment for contempt has obtained in our courts, both of law and equity, from an early period. In Coryell v. Holcombe, 9 N. J. Eq. (1 Stock.) 650 (at p. 653), it appears that interrogatories were exhibited. In Magennis v. Parkhurst, 4 N. J. Eq. (3 Gr. Ch.) 433, and in Jewett v. Dringer, 27 N. J. Eq. (12 C. E. Gr.) 271, the same practice was pursued. So, in the supreme court, in State v. Fisler, 6 N. J. Law (1 Halst.) 305, 371. In the court of chancery the practice is regulated by rules Nos. 133 and 134, promulgated September 8th, 1817, and rules Nos. 135, 136 and 137, promulgated May 21st, 1822. These rules provide that upon the return of an attachment for contempt with the defendant in custody, or upon his appearance on the return day pursuant to his bond given at the time of arrest, the opposite party shall exhibit interrogatories and enter a rule for the defendant's examination before a master. And, by statute, the practice in the orphans court with respect to attachment for enforcing performance of orders requiring the payment of money is made conformable to the practice in chancery. P. L. 1898 p. 785 § 184.

Upon the whole, therefore, we hold that the order of September 21st, 1904, had not the effect of determining the question of the appellant's guilt, but only of determining that she was apparently guilty, and that for this reason an attachment should be issued against her, upon the return of which, according to the ordinary practice of the court, she would have a further hearing upon the question of her guilt. This being so, it follows, upon the authority of Coryell v. Holcombe, 9 N. J. Eq. (1 Stock.) 650, that she was not in a legal sense aggrieved by the order, and not entitled to appeal therefrom to the prerogative court.

The dismissal of her appeal was therefore proper, and the order of dismissal should be affirmed, but without costs.

3 Robbins.

Cogan v. Conover Manufacturing Co.

For affirmance-THE CHIEF-JUSTICE, DIXON, GARRISON, FORT, GARRETSON, PITNEY, SWAYZE, BOGERT, VROOM, GREEN, GRAY-11.

For reversal-None.

THOMAS COGAN

V.

CONOVER MANUFACTURING COMPANY.

GREENVILLE BANKING AND TRUST COMPANY, appellant,

บ.

FRANK P. MCDERMOTT, receiver, respondent.

[Argued June 26th, 1905. Decided July 11th, 1906.]

1. An assignment of an account not yet due, if absolute in form, is not to be construed as a mere covenant to pay out of the fund because the assignor therein agrees to act as agent of the assignee in collecting the money.

2. A corporation assigned as collateral security for a debt the first payment on an executory contract for two condensers to be made by it; one condenser was substantially completed and actually delivered to the vendee prior to the appointment of a receiver of the vendor corporation, and the price was subsequently paid to the receiver.-Held, that the assignee was entitled to the fund to the extent of the price of the condenser actually delivered as far as needed to pay the debt secured.

3. As between an assignee of a fund under an equitable assignment and the receiver of the assignor, an insolvent corporation, notice of the assignment to the debtor or holder of the fund is not necessary to perfect the title of the assignee.

69 Eq.

Cogan v. Conover Manufacturing Co.

On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported ante p. 358.

Messrs. Collins & Corbin, for the appellant.

Mr. J. Merritt Lane, for the respondent.

The opinion of the court was delivered by

SWAYZE, J.

The Greenville Banking and Trust Company claims a right to have certain debts due it from the Conover Manufacturing Company paid in full by the receiver out of moneys in his hands, upon which it claims a lien by reason of assignments from the insolvent corporation. This claim was rejected by the receiver, and his decision was affirmed by the vice-chancellor.

The determination of the case depends upon the construction. of two documents signed by the Conover company, which read as follows:

"January 5th, 1904.

"In accordance with a resolution passed by the board of directors at a meeting held this date:

"We hereby assign to the Greenville Banking and Trust Company as collateral security the sum of thirty-seven hundred and eighty ($3,780) dollars out of an order from the Public Service Corporation of New Jersey.

"We agree to act as agent of said Greenville Banking and Trust Company in collecting this money, and agree to turn it over to them immediately on receipt of same in such sums as it may be received.

"This $3,780 is the balance remaining of our final payment of $6,300, after deducting $2,520 which has already been assigned to said Greenville Banking and Trust Company."

"JERSEY CITY, N. J., April 26th, 1904.

"We hereby assign and transfer to the Greenville Banking and Trust Company the first payment of eighty-two hundred and fifty ($8,250) on contract with the Public Service Corporation of New Jersey, amounting to sixteen thousand five hundred ($16,500), and we authorize the Public Service Corporation of New Jersey to make above payment, when due, direct to the Greenville Banking and Trust Company."