In re O'Brien for a Habeas Corpus

Cole, J. The petitioner, a married woman, was, by an order made by a court commissioner in proceedings supplemental to an execution, required to appear before such commissioner, and answer concerning property belonging to her husband, the judgment debtor, which property it was alleged was in her possession and under her control. She appeared at the time and place appointed in the order, but, upon being required to be sworn and make answer concerning said property, she absolutely refused to be sworn, or to make any answer in the premises. She was then attached for disobeying the order of the commissioner, and was finally adjudged to be guilty of a contempt under the statute. All these [548] matters appear in the return to the writ. She now asks to be discharged, upon the ground that the proceedings before the' commissioner were unauthorized and void. The principal and only important objection taken to the proceeding is, that a wife cannot be compelled, in supplemental proceedings, to disclose whether she has property belonging to her husband in her possession and under her control, or not. It is fully admitted that supplementary proceedings are a substitute for a creditor’s bill under the old practice. And, as we understand the former practice, where the property of the judgment debtor, against whom an execution had‘been returned unsatisfied, was in the actual possession and control of the wife, under circumstances that rendered it impossible to reach and obtain possession of it by a creditor’s bill against the husband alone, a bill might be filed against the husband and wife jointly, so as to obtain a decree which would reach the property in her hands, and compel her to deliver it up for the satisfaction of her husband’s debts. Copous v. Kauffman, 8 Paige, 584. And we suppose the plaintiff in such a case might, by special order, demand a separate answer of the wife. True, her answer could not be read against her husband. But she would be required to state whether she had in her possession, and actually under her control, property which belonged to her husband. And the answer would of course be good as against her; and if it appeared that she had such property, could she not be compelled to deliver it up to the creditors of the husband? The chancellor says, in Copous v. Kauffman, that he is not prepared to say that a bill in chancery might not be so framed as to reach that case ; thus impliedly sanctioning the doctrine that she might be compelled to deliver it up. We think the petitioner can be required to answer whether she has property belonging to her husband in her possession and under her control. [549] The petitioner must be remanded to the custody of the sheriff. By the Court. — So ordered.