People ex rel. Crouse v. Cowles , 34 How. Pr. 481 ( 1867 )

JBy the court, E. Darwin Smith, J.

Upon, the return to the writ of habeas corpus, it appeared that the petitioner Marinda C. Wheeler, was imprisoned in the jail of Wayne county, upon an attachment issued out of this court"for the non-compliance by her with an order made in supplemental proceedings, by one of the judges of this court at chambers, requiring her to pay to the relators the amount of a judgment recovered by them against her in this court, amounting to the sum of $723.64, and interest thereon from the 15th day of October, 1866, and $40 costs in such supplemental proceedings. It also appeared upon such return, and by the admission of the parties that the petitioner, far such writ of habeas corpus, was a married woman, and that the said judgment was recovered for goods sold to her, and that the said judgment directed the payment of the same out of her separate property. It also appeared that the order, made in such supplemental proceedings requiring the said petitioner to pay such judgment and costs, within ten days after its date, or in default thereof, that an attachment issue against her, had been appealed from and had been affirmed at a general term of this court in the 5h district (33 How., p. 337). The order must, therefore, be denied in this proceeding, and I do'not see why it was not a valid order. It wasran order for the payment of money, and it was admitted on the return of such habeas corpus, that said order directing such payment, was based upon the assumption that the said Marinda C. Wheeler, had means in her possession sufficient to pay said judgment. The attachment was issued under section 4 of title 13, chapter 8, part 3 of the Revised Statutes, entitled “ of proceedings for contempts to enforce civil remedies.” This section is as follows: “When “ any rule or order of a court shall have been made for pay- “ ment of costs or any other sum of money, and proof by affi- “ davit shall be made of the personal- demand of such sum “ of money, and of a refusal to pay, the court may issue a “ precept to commit the person so disobeying, to prison until “ such sum and the costs and expenses of the proceeding be “ paid.” The section clearly authorizes the issuing of the attachment, under which the petitioner was imprisoned. Such an attachment, however, is a mere substitute for an execution against the body. It is equivalent to a capias ad satisfaciendum. It is an execution in a civil action upon which the defendant, if she had been a man, would have been entitled to the jail liberties under section 40, of article 3, chapter 8, part 2 of the Revised Statutes, page 433. This was expressly held by Chancellor Walworth, in Van Wezel agt. Van Wezel (3 Paige, 38), and in the People ex rel. Hawley agt. Bennett (4 Id. 282). The order of the county judge letting the petitioner to bail upon the jail limits was therefore entirely correct, if the defendant could be imprisoned on execution, and must be affirmed. • If the order had directed the payment of the judgment out of any particular fund, or directed the doing by the defendant of any particular act or thing to effectuate such payment, then the disobedience of such order would have been a contempt for which, upon a proper conviction by the judge or court, a fine might have been imposed, and upon such fine the defendant, though, a married woman, might have been imprisoned as upon criminal process. But here there has been no appearance or hearing before the court or judge, no adjudication that the petitioner was in contempt, and no fine has been imposed upon her, and the attachment is a mere civil process to enforce the payment of money. It is regular as process for that purpose, but if the question were before us we should be obliged to hold, that a female could not be arrested or imprisoned on such process (Code, § 179), and the county judge should so have held, and have discharged the petitioner entirely from the said imprisonment. The order of the county judge must therefore be affirmed with costs.