Carpenter, J,
The facts of this case are briefly these: Certain liquors were seized with a view to condemnation under the statute. Two of the respondents, McMahon and Wren, appeared before the magistrate and claimed the liquors, and, being unsuccessful, appealed to the District Court. After the appeal, and before the session of the appel late court, they obtained from one of the other respondents, who was a magistrate, a writ of replevin, by virtue of which • another respondent, who was an officer, took the liquors by force from the officer in whose custody they were and delivered them to the claimants, McMahon and Wren. The ¡present proceedings were instituted by the State’s Attorney with a view to the punishment of the parties concerned in the issuing and serving the writ of replevin for a contempt. The District Court found the facts and rendered judgment against the respondents, and the record is brought befoi’e us •by a motion in error.
'There was a demurrer to the complaint which was over ■ruled. The insufficiency of the complaint is still insisted <on, on the ground, as it is claimed, that the acts alleged do mot constitute a contempt of any court, especially the District Court; and for the reason that the liquors were not in its custody, and the acts not committed in its presence, and that the appealed case against the liquors was not then pending before that court.
[195]*195First in importance perhaps, if not first in regular order, is the question whether the cause was pending before the District Court.
A trial had been had before the magistrate and a judgment rendered. After that, certainly the case was not pending before the magistrate. If no appeal had been taken the judgment would have ended the case and it would not have been pending anywhere. The appeal vacated the judgment and the case revived. In its resurrected form however, it was not remitted to its former position—a case before the magistrate, but it at once entered upon a higher scale of existence. The appeal transferred the case instanter to the jurisdiction of the District Court. That court for the purpose of acquiring jurisdiction of new cases is always in existence. Jurisdiction in point of right does not at all depend upon the actual sessions of the court, but attaches as soon as an appeal is taken or an ordinary process served. That is more apparent perhaps in those states and jurisdictions where processes returnable to the court must issue from the court itself. Our practice of allowing any magistrate to issue writs returnable to the higher courts does not vary the principle. ■ It is familiar to the profession in this state that a suit is regarded as pending as soon as legal service is made on the defendant. For the same reason it must be regarded as pending before the appellate court as soon as the appeal is taken. The right of the court to entertain jurisdiction of the cause, unless it is otherwise disposed of by the parties, is then complete, and no other tribunal can interfere with it. The fact that as a matter of convenience, practice, and law, the court will take no action until the session of the court, does but affect the question of right. The cause was therefore pending immediately after the appeal, and as it could be pending in no other court it was pending in the District Court.
But it is said that the liquors were not in the custody of that court. If by this is meant that they were not in the actual physical custody of the judge or of some officer by him appointed, or that they were not held by order of that court, [196]*196we shall have no occasion to controvert the assertion; but if it is intended to say that the liquors were not held after the appeal subject to the orders of that court, wc cannot assent to it, for it is very clear that they were so held. In. that sense therefore and for that purpose they must be regarded as constructively at least in the custody of the court. The fact that they were in the actual possession of a constable of the town makes no difference, as the constable was but the agent of the law, and the law held them that they might be disposed of as the District Court might direct.
It is further said that the acts complained of were not committed in the presence of the court; and the statute regulating the punishment of that class of contempts is referred to. It is said that the statute is exclusive, and practically abolishes all other common law contempts, with two exceptions presently to be noticed; and that inasmuch as the statute does not reach this case the respondents cannot be punished in this proceeding at all. Confessedly the statute deals only with acts of contempt committed in the presence of the court, and where no process is required to bring the offender into court. It leaves all other cases of contempt to be ascertained and punished according to the course of the common law.
It is conceded by the learned counsel for the respondents that there are two classes of cases in the nature of con-tempts which are not covered by our statute and which are summarily punished by our courts; 'and these are misconduct of the officers of the court and disobedience to the orders and decrees of the court. The principal difference between these and statutory contempts is, that in the former, process is required to bring the party into court, and the acts or omissions constituting the offense are to be proved as in ordinary cases by the introduction of witnesses; while in the latter the offender is ordered into custody without process and the judge may act upon his own knowledge.
The power to enforce by attachment its own orders and decrees -necessarily inheres in every court of record, and that power has been repeatedly exercised by the Superior Court in this state with the sanction of this court. Lyon v. [197]*197Lyon, 21 Conn., 185; Rogers Manufacturing Company v. Rogers, 38 Conn., 121; Tyler v. Hamersley, 44 Conn., 393. This is not denied.
The present case presents the question whether the court has power to protect its own jurisdiction over a case before trial, against the unlawful acts of a party who would be benefited by defeating that jurisdiction. For it must be admitted that the acts of the respondents tended directly to destroy the jurisdiction of the District Court, and doubtless that was the object in view. That is apparent from the nature of the proceeding. It was a proceeding in rem. Without the custody, actual or constructive, of the thing proceeded against, the court could have no jurisdiction and all its proceedings would be nugatory. Now it is not to be tolerated in a civilized and enlightened community that a party interested in defeating the ends of justice should have it in his power by force and violence to take away the jurisdiction of the court. That this is attempted to .be done under the forms of legal proceeding is an aggravation, and calls upon the court to be astute not to allow its process to be used for any such purpose. We come then to the inquiry whether the principles of the common law and precedents in this state or elsewhere will justify the court in protecting its jurisdiction by proceedings as for a contempt.
A case is referred to in Salkeld arising during the reign of Henry the Seventh, in which a party attempted to proceed in the lower court after the cause had been legally removed into another jurisdiction. In 1 Anst., 212, Eyre, Chief Baron, gives a very interesting description of the proceedings.
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Carpenter, J,
The facts of this case are briefly these: Certain liquors were seized with a view to condemnation under the statute. Two of the respondents, McMahon and Wren, appeared before the magistrate and claimed the liquors, and, being unsuccessful, appealed to the District Court. After the appeal, and before the session of the appel late court, they obtained from one of the other respondents, who was a magistrate, a writ of replevin, by virtue of which • another respondent, who was an officer, took the liquors by force from the officer in whose custody they were and delivered them to the claimants, McMahon and Wren. The ¡present proceedings were instituted by the State’s Attorney with a view to the punishment of the parties concerned in the issuing and serving the writ of replevin for a contempt. The District Court found the facts and rendered judgment against the respondents, and the record is brought befoi’e us •by a motion in error.
'There was a demurrer to the complaint which was over ■ruled. The insufficiency of the complaint is still insisted <on, on the ground, as it is claimed, that the acts alleged do mot constitute a contempt of any court, especially the District Court; and for the reason that the liquors were not in its custody, and the acts not committed in its presence, and that the appealed case against the liquors was not then pending before that court.
[195]*195First in importance perhaps, if not first in regular order, is the question whether the cause was pending before the District Court.
A trial had been had before the magistrate and a judgment rendered. After that, certainly the case was not pending before the magistrate. If no appeal had been taken the judgment would have ended the case and it would not have been pending anywhere. The appeal vacated the judgment and the case revived. In its resurrected form however, it was not remitted to its former position—a case before the magistrate, but it at once entered upon a higher scale of existence. The appeal transferred the case instanter to the jurisdiction of the District Court. That court for the purpose of acquiring jurisdiction of new cases is always in existence. Jurisdiction in point of right does not at all depend upon the actual sessions of the court, but attaches as soon as an appeal is taken or an ordinary process served. That is more apparent perhaps in those states and jurisdictions where processes returnable to the court must issue from the court itself. Our practice of allowing any magistrate to issue writs returnable to the higher courts does not vary the principle. ■ It is familiar to the profession in this state that a suit is regarded as pending as soon as legal service is made on the defendant. For the same reason it must be regarded as pending before the appellate court as soon as the appeal is taken. The right of the court to entertain jurisdiction of the cause, unless it is otherwise disposed of by the parties, is then complete, and no other tribunal can interfere with it. The fact that as a matter of convenience, practice, and law, the court will take no action until the session of the court, does but affect the question of right. The cause was therefore pending immediately after the appeal, and as it could be pending in no other court it was pending in the District Court.
But it is said that the liquors were not in the custody of that court. If by this is meant that they were not in the actual physical custody of the judge or of some officer by him appointed, or that they were not held by order of that court, [196]*196we shall have no occasion to controvert the assertion; but if it is intended to say that the liquors were not held after the appeal subject to the orders of that court, wc cannot assent to it, for it is very clear that they were so held. In. that sense therefore and for that purpose they must be regarded as constructively at least in the custody of the court. The fact that they were in the actual possession of a constable of the town makes no difference, as the constable was but the agent of the law, and the law held them that they might be disposed of as the District Court might direct.
It is further said that the acts complained of were not committed in the presence of the court; and the statute regulating the punishment of that class of contempts is referred to. It is said that the statute is exclusive, and practically abolishes all other common law contempts, with two exceptions presently to be noticed; and that inasmuch as the statute does not reach this case the respondents cannot be punished in this proceeding at all. Confessedly the statute deals only with acts of contempt committed in the presence of the court, and where no process is required to bring the offender into court. It leaves all other cases of contempt to be ascertained and punished according to the course of the common law.
It is conceded by the learned counsel for the respondents that there are two classes of cases in the nature of con-tempts which are not covered by our statute and which are summarily punished by our courts; 'and these are misconduct of the officers of the court and disobedience to the orders and decrees of the court. The principal difference between these and statutory contempts is, that in the former, process is required to bring the party into court, and the acts or omissions constituting the offense are to be proved as in ordinary cases by the introduction of witnesses; while in the latter the offender is ordered into custody without process and the judge may act upon his own knowledge.
The power to enforce by attachment its own orders and decrees -necessarily inheres in every court of record, and that power has been repeatedly exercised by the Superior Court in this state with the sanction of this court. Lyon v. [197]*197Lyon, 21 Conn., 185; Rogers Manufacturing Company v. Rogers, 38 Conn., 121; Tyler v. Hamersley, 44 Conn., 393. This is not denied.
The present case presents the question whether the court has power to protect its own jurisdiction over a case before trial, against the unlawful acts of a party who would be benefited by defeating that jurisdiction. For it must be admitted that the acts of the respondents tended directly to destroy the jurisdiction of the District Court, and doubtless that was the object in view. That is apparent from the nature of the proceeding. It was a proceeding in rem. Without the custody, actual or constructive, of the thing proceeded against, the court could have no jurisdiction and all its proceedings would be nugatory. Now it is not to be tolerated in a civilized and enlightened community that a party interested in defeating the ends of justice should have it in his power by force and violence to take away the jurisdiction of the court. That this is attempted to .be done under the forms of legal proceeding is an aggravation, and calls upon the court to be astute not to allow its process to be used for any such purpose. We come then to the inquiry whether the principles of the common law and precedents in this state or elsewhere will justify the court in protecting its jurisdiction by proceedings as for a contempt.
A case is referred to in Salkeld arising during the reign of Henry the Seventh, in which a party attempted to proceed in the lower court after the cause had been legally removed into another jurisdiction. In 1 Anst., 212, Eyre, Chief Baron, gives a very interesting description of the proceedings. “ The roll of the 19th of Henry the Seventh, to which I alluded, and which is referred to in Salkeld, and is there supposed to be a precedent for removing an action and for granting an attachment, because the party after service of the order took upon himself to proceed, was in truth a proceeding as for an immediate contempt, for levying a plaint in a court at Bristol for a parcel of wine that had been seized and prosecuted to condemnation in this court, and it was a very orderly proceeding. The Attorney-General states it as a matter of complaint against the party; there is a capias [198]*198awarded; he is taken into custody; he is brought into court; is committed for the contempt to the Fleet; he is brought up again; makes fine to the court; his fine is regularly recorded; and then upon the ground of the fine he is dismissed.”
. It is probably true that courts were more arbitrary at that early day and governed less by forms and principles presci’ibed by the written law than are our own courts; and in a case like that we should probably find a less harsh but equally effective remedy by an injunction, or by treating the proceedings in the lower court as a nullity. In the case before us, however, xxo other remedy seexns to be adeqxxate. An injunction could not prevent the acts, for it would not ordinax’ily be known in season that they were contemplated. The acts could not be treated as a nullity, for. the liquors were thereby taken from the custody of 'the coux’t. It is suggested that the court might have ordered the respondents to return the liquors. That might or might not have been a remedy. In many cases it would not be. The party and the liquors might be without the texritox'ial jurisdiction of the court; or, by reason of sales or otherwise, it might be impossible to trace axxd identify the liquors. The case referred to, however, is important as showing how jealously the court at that day guarded and protected its owxx jurisdiction.
The case in 1 Anst., 212, arose under the revenue laws. The language of the Chief Baron is pertinent to the present case. After the part quoted above, he proceeds as follows- “ In this they evidently proceeded upon a general analogy to the proceedings in other coux’ts; for there is no court that suffers its process either to be insulted or to be materially interrupted; and whenever this is attexnpted it is a contempt upon which the courts proceed-to graxxt an attachment in the first instance. * * But that this jurisdiction was not a very novel thing, nor this a single instance, we may collect from other cases that ax’e very clearly established, namely, that if a man at this day, there being a seizure in order to condemnation, was to presume to replevy the goods, it would be a contempt of the court for which an attachment would be granted instantly; so if a distress is taken upon a [199]*199fee farm rent or other duty to the crown, it is considered as a contempt to replevy and an attachment will issue upon it.”
The case of Riggs v. Whiting, 15 Abb. Pr. Reports, 388, was an application to the court to direct a receiver to pay the landlord from rents collected of under-tenants before distribution to creditors. It was objected that the landlord should be left to a suit against the receiver. The court, after approving the course taken, say:—“Any attempt to deprive an officer of the court of property in his possession, by suit or other adverse proceeding, without first obtaining leave of the court, would be regarded as a willful contempt, for which the party instituting the proceeding would subject himself to punishment by attachment.”
In Richards v. the People, 81 Ill., 551, the court holds that “ a receiver is an officer of the court, and that his possession is the possession of the court itself, and any unauthorized interference therewith, either by taking forcible possession of the property committed to his charge, or by legal proceedings for that purpose without the sanction of the court appointing him, is a direct and immediate contempt of court and punishable by attachment.”
The same doctrine is found in Cochrane v. Mead, L. Reps., 20 Eq. Cases, 282.
These authorities are sufficient perhaps to show that whenever courts acquire jurisdiction over property and hold it subject to judicial proceedings they will not suffer their possession to be unlawfully disturbed, or quietly submit to being deprived by unlawful means of their power to proceed; but will protect that jurisdiction by the summary process of attachment for contempt. Property attached in an ordinary civil suit stands upon a different ground. The attachment merely creates a lien upon it in favor of the judgment that may be obtained. It is in no sense a proceeding in rem. The jurisdiction of the court does not depend at all upon the possession of the property, but does depend upon the parties and the subject matter. Hence the defendant may cause the property to be receipted, or the attachment dissolved by substituting a bond, without affecting the jurisdiction of the court.
Our conclusion upon this part of the case is, that the same [200]*200principle -which governs courts in enforcing their decrees will justify the use of all necessary means to protect their jurisdiction in order that they may pass decrees. A proceeding for contempt is an effectual means to that end.
That the act of the respondents was a contempt is sufficiently shown, unless they are right in their claim that the statute gave them a right to an action of replevin.
The statute is, that “ the action of replevin may he maintained to recover any goods or chattels, in which the plaintiff has a general or special property with a right to their immediate possession, and which are wrongfully detained from him in any manner,” &c.
It is claimed that the property was wrongfully detained, or that they in good faith supposed that it was, and that they had a right to try the question in this way. We do not think the word “wrongfully” was used in such a sense as to cover a case of liquors seized under the statute. If there was probable cause for believing that the liquors had been forfeited under the law, and we must assume that there was, the statute authorized a process by which, they might he seized and held to await a judicial determination of that question. That being so, it can in no just sense be said that the officer who held it held it wrongfully. Even property attached, if liable to attachment, cannot be replevied by the owner if he is the defendant in the suit. It is only where property of a stranger to the suit is attached that replevin will lie. Here there can be no pretense that the property of the wrong person was taken. It is not the ownership by any particular person that gives a right to seize it, but it is the purpose for which it is being used without regard to ownership.
Again, the* claimants had no right to the immediate possession of the property. Such a right would be wholly inconsistent with the power of the court to condemn it. The Replevin suit therefore could not be maintained. See authorities cited above; also Allen v. Staples, 6 Gray, 491.
It is further claimed that the respondents, having been examined as witnesses under oath, and having testified that they acted in good faith and intended no disrespect to the [201]*201court, thereby purged themselves of the contempt, and that no further proceedings could thereafter he had against them except a prosecution for perjury. That may be the practice in some jurisdictions, but we agree with the Supreme Court of New Hampshire, that the better practice is to receive other testimony and settle the whole question of contempt in one proceeding. State v. Matthews, 37 N. Hamp., 450. And such we understand to be the practice in this state. There is no error in this respect.
It is also claimed that the court erred in refusing to allow a trial by jury. We are not aware of any case in this state or elsewhere in which it has been held that a party accused of contempt is entitled to a trial by jury. .The contrary has been repeatedly held. State v. Matthews, 37 N. Hamp., 450; Oswald’s Case, 1 Dallas, 319; State v. Becht, 23 Minn., 411; State v. Doty, 32 N. Jer., 403; Crow v. The State, 24 Texas, 12. It would seem to be necessary that the court should have the power to judge of all questions of this nature. The power to protect the dignity of the court might hang by a slender thread if it was made subject to the uncertainties of a jury trial.
It is true the proceeding is summary, and in some measure arbitrary, but no special inconvenience is likely to result from it. Parties can always have the assistance of able counsel, who will be vigilant and zealous in their behalf; every right-minded judge will bear in mind that it is not his private and personal dignity but the dignity of the law and of the state that is in his keeping, and will be disposed to act fairly and impartially; and if these fail, there is public sentiment, which is quick to perceive and prompt to challenge any abuse of power, and which would speedily find expression, if need be, in the passage of a remedial statute.
The judgment of the court overruling the demurrer was not a final judgment, and the respondents were not at that stage of the case entitled to a motion in error. Gen. Statutes, p. 450, sec. 14.
There is no error.
In this opinion the other judges concurred.