
    
      Rosa D. Schultz, executrix, vs. M. E. Carter and others.
    
    An attachment cannot issue to compel a female to pay the amount of a money decree.
    
      Before Dunkin, Ch. at Charleston, February, 1845.
    In obedience to a decree made in this case in June, 1843, (for which see the report of this case in Speers Bq. 533,) references were held before Edward R. Laurens, one of the Masters, who reported, inter alia, that the account of the complainant as executrix showed a balance of assets in her hands of four thousand eight hundred and seventy-five dollars sixty-seven cents. In June, 1844, the report of the Master was, in this respect, confirmed by Chancellor Johnson, who “ordered and decreed that the complainant do pay into the hands of Mr. Laurens, one of the Masters,” the said sum of money, “ being the amount to be accounted for by the complainant as executrix of Wade H. Schultz deceased.”
    The complainant failed to pay the amount of the decree, and this was a motion, made on the return of a rule to shew cause, for an attachment to compel the complainant to pay the amount of the decree.
    
      The Chancellor. — This is a motion for an attachment against Mrs. Schultz. A money decree has been obtained against her as the executrix of her deceased husband. It was alleged by the actors, that she had no property out of which the money might be levied by the ordinary process of a fieri facias. This proceeding is analagous to a capias ad satisfaciendum at law, and is a substitute for it.
    By the Act of 1824  it is declared, “that no female shall hereafter be liable to be arrested by any writ of capias ad satisfaciendum.” It seems to the court that this is a clear indication of the will of the legislature, that no female should be imprisoned on final process, to enforce the payment of money, and that this court should follow the law.
    The motion is discharged.
    The defendants appealed, on the ground :—
    That the Act of 1824, abolishing the writ of capias ad sa-tisfaciendum as to females, does not apply, nor was intended to apply, to the process of contempt in the Court of Chancery to compel performance of its decrees, and that the silence of that Act, in relation to such process, is a clear indication of the intention of the legislature not to interfere with the same.
    
      H. A. DeSaussere and Yeadon, for the motion.
    
      Crafts, contra.
    
      
       6 Stat. 237.
    
   Per Curiam.

We concur in the decree of the circuit court. Appeal dismissed.

Signed by Johnson, Hauper and Dunkin, CC.

Johnston, Ch.

I entirely dissent from the application of the Act of 1824, in this case.

Where the decree is for a demand of a legal character, and the remedy at law would be a ca. sait may be that an attachment should be regarded as a substitute for it, and this statute should perhaps be applied by analogy. But where the demand arises out of a trust, the decree necessarily implies a breach of trust, and to apply the statute in such a case, comes neither within its letter nor spirit; and must operate fatally in this jurisdiction, whose principal function is the enforcement of trusts.

The exception of female trustees must prove peculiarly embarrassing in complicated cases, where many trustees may be before the court at the same time, whose liabilities and remedies, as against one another, must necessarily be greatly, — I fear inextricably — disturbed; and great injustice may be done by a partial enforcement of the demands of justice among them. I feel that this decree endangers estates in South Carolina to a most alarming extent.

While, as in Dawson’s case, I would apply the insolvent laws to discharge a trustee in confinement, who, in conforming to their provisions, might be regarded as having purged the contempt, and done all in his power towards performing the decree, I would not voluntarily relinquish an essential means of enforcing trusts and punishing frauds, without which this court does not deserve its name.  