
    MARY A. WOOD v. JAMES A. WOOD.
    An order for alimony pend, lite creates a debt byrecord, and may be enforced by either a rule and consequent attachment, or by a fi. fa.
    
    Such an order is not necessarily affected by the failure of the petitioner to obtain the relief prayed for.
    One who has been committed under such an attachment can be discharged only by payment, or by resorting to the relief given by the insolvent debt- . or’s act.
    The act of 1866-67, abolishing imprisonment for debt, does not embrace cases of commitment under attachment for a failure to comply with an order of court.
    
      (Clerk's Office v. Allen, 7 Jon., 156; cited and approved.
    Motions in a Divorce Canse, heard before Warren J, at a Special Term of the Superior Court of Wayne, held upon the 1st Monday of January 1868.
    The petition was for a divorce from the bonds of matrimony, and at a previous Term alimony pendentelite had been granted. The defendant having failed to comply with the order was, after a full hearing, at Rail Term 1867 adjudged to be in contempt, and was thereupon committed. At the Special Term the divorce cause was tried, and decided against the petitioner.
    Thereupon the defendant moved that the order allowing alimony, and the order committing him for a contempt, should be rescinded, and that he should be discharged from imprisonment.
    The court, pro forma, refused to allow either motion, for want of power; and the defendant appealed.
    
      Bragg, for the appellant.
    There are two kinds of contempt — one direct (ex. gr. an indignity offered to thecourt) for which aparty may be punished by imprisonment at discretion. Tbe other, in not performing an order or decree in some case, as here.
    Attaching a party for non-performance and placing him in contempt, is for the benefit of the other party — in this case the wife.
    As a general rule a party cannot be heard in any case in which he has been put in contempt, except for the purpose of clearing his contempt. Adams Eq., 324-26 & 393-4-5. But he may move to discharge an order, though in contempt for not executing it. Mosely Rep. 258.
    The order in this case, made by virtue of Rev. C., ch. 39, s. 15, was interlocutory only (see act). The proceeding though an equitable one, was in a court of law. The court had full power at any time to change, or modify it, or set it aside. The judge therefore erred as to his want of power. Indeed he ought to have dismissed the petition and that would have carried the order with it. The petitioner having failed to establish her right to divorce or alimony, the alimony allowed, pendente lite, cannot and ought not to be collected. The order for it is virtually nullified. The money, if paid into court, is the husband’s, not the wife’s. Should she take it, he would have a right to retake it from her. The law does not require a vain thing to be done, and it was in the power of the judge to act upon such considerations.
    It has been held that arrearages of alimony cannot be collected by the wife’s ex’ors. after her death. Shelford on M. & D., 602 and cases cited. Here the wife is not dead, but her separate existence is, in law, merged in that of the husband. It is as effectual, so far as she is concerned, as if the money had been paid, no one else being concerned in enforcing thedecree. The dignity of the court is not concerned.
    2. The contempt was fully and completely waived by the subsequent proceedings and trial. The defendant was fully • recognized by the petitioner and the court, as having a status therein, and the petitioner had no right to ask his further detention on that order, for the contempt. 1 Dan. Ch. P. 560; 1 Yes. & B. 325; 2 Ibid, 100; 15 Yes. 174.
    3. At all events the court, which is the same court by which he was put in contempt, had a discretion, and was not entirely without power to act. Otherwise a party might be imprisoned forever, when the performance of a decree or ■order was impossible. But in such a case the court will discharge. Exch. Rep; 6 Price 321, note. Also Bequiav. Paty, 2 La. Reg. 1108: Bex v. Balter, 1 II. Blk., 543; Watson on Sh’ffs. 7 L. L. 89, top; Sewoll on Sh’ffs, 46 L. L. 407, top.
    4. In England it is held that an insolvent, in custody for contempt for non-payment of money or costs, is entitled to discharge under the insolvent acts. It seems a rule of the courts of equity which I find cited 2 Chitty’s Eq. Dig. 907.
    Our late act abolishes imprisonment for debt. Can a party be imprisoned now, for not satisfying a money decree when ordered to do so by a court of equity on the ground that it is a contempt ? It seems to me it can no more do so than can a court of law imprison upon a ca. sa. Wheldale v. Wheldale, 16 Yes. 376 & notes; 3 Desauss. 264 — 549.
    5. The case of Love v.' Gamp, 6 Ire. Eq. 209, does not contravene the principles contended for here.
    No counsel, contra.
    
   Battle J.

The alimony which the court is authorized by the 15th section of the 40th chapter of the Revised Code to decree to the petitioner for the support of herself and her family, at any time during the pendency of a suit for divorce, cannot be regarded in any other light than as a debt. It is a certain sum of money which the court ascertains and orders to be paid by the husband to the supposed-to-be-injured wife, not only to enable her to live, but to furnish her with the means for prosecuting her suit. It is therefore a debt of record, the payment of which the court may enforce either by a rule upon him andan attachment thereon, or by the milder process of a fieri facias. A court of law, when it has the alternative of pursuing either the one course or the other, usually adopts the latter (Clerk's Office v. Allen, 7 Jon. 156), while a court of equity more frequently resorts to the former. Petitions for divorce may be filed either in a court of law or a court of equity, though the mode of proceeding, whether brought in one or the other, is regulated mainly, if not altogether, by the rules of practice which prevail in chancery. Hence in the present suit, upon the non-payment by the defendant of the sum or sums of money decreed for alimony pendente lite, he was ordered to be attached for a contempt of the court, and was thereupon committed to jail. His imprisonment was not for any indignity offered to the court and on that account inflicted as punishment, but must be considered to be in the nature of an execution for debt in which the body is taken under a capias ad satisfaciendum. Viewed in this light, which we think is the only proper light in which it can be viewed, the defendant cannot be discharged unless he pays the debt, or proceeds in a proper manner to take the benefit of the insolvent debtor’s act. But it is said that as the suit terminated in favor of the defendant, it would be useless to compel him to pay the money, since being paid to the wife it would immediately become his again. But it is not certain that the wife was entitled to receive it, because being ordered for the support and maintenance ofherself and family, and also to enable her to carry on the suit, she may have been compelled to assign her interest in it to get the means of living while her husband was in default by his non-payment of it. The court •of equity would, of course, protect such an assignment, and that it may do so in every case, the rule must be that the court has no power to discharge the defendant from the execution even though the suit may terminate in his favor.

It is said again, that the defendant was entitled to be discharged by the late act for abolishing imprisonment for debt. See act of 1866-7, ch. 63. We were of that opinion at first, but upon a careful examination of the act we find that by its terms it is confined to the ordinary proceeding in a court of law, and does not embrace a case like the present. Our conclusion, therefore, is that His Honor in the court below was right in deciding that he had no power to discharge the prisoner, and that his judgment must be affirmed.

But it does not necessarily follow that the defendant, if unable to pay, is without remedy. He is to be regarded, as we have already intimated, as a debtor, and in execution for a debt, and as such it may well be contended that he is entitled to the benefit of the insolvent debtor’s act. Rev. Code, ch. 59. That act has always received a liberal interpretation, and it may be that the defendant’s case comes within the meaning of the first or sixth section. The words in the first section “If any person shall be taken or charged on any mesne process, or shall be taken or charged on execution for any debt or damages rendered in any action whatever,” are very broad; and so are the words of the sixth section, “When any debtor shall be taken on any capias ad satisfaciendum, or after judgment be in the custody of the sheriff or other officer by the commitment of the court, or by surrender of bail out of court, for any debt or contract whatever.”

In connection with this subject see the case of Wheldale v. Wheldale, 16 Ves., 376, to which we were referred by the counsel for the defendant in his learned argument before us.

The judgment must be affirmed.

Per Curiam. Judgment affirmed.  