In re Kindling.

said defendant, immediately after said date, came to this city of Milwaukee," and that affiant is informed and believes "that said defendant brought with him to this city of Milwaukce a large amount of the proceeds of the property so stolen by him, which he sold, and that he now has a large amount of property under his control, but this deponent says that said defendant refuses unjustly to apply any of his property towards the satisfaction of said judgment, which is wholly unpaid." The affidavit then states that defendant had been arrested by order of the county judge, and required to give bail in the sum of $10,000, and had neither given bail nor deposited the amount, and that nevertheless Commissioner Hunter had made an order for his release from such arrest, and adds, "that during his imprisonment on said order of arrest, said defendant once before escaped into the state of Iowa, and there concealed himself under a false name, and the wife of said defendant, as deponent is informed, has already left this state, and deponent is afraid and verily believes that said defendant will be released from imprisonment under said order of Court Commissioner Hunter, and he has reasons to believe and does believe that said defendant will at once leave the state on being so released." Mr. Thompson's order recited as a fact (among others), made to appear to his satisfaction, that there was danger of the judgment debtor leaving the state, and reason to believe that he had property which he unjustly refused to apply to the payment of the judgment. Kindling being still in jail when this order was served, the sheriff, in obedience thereto, arrested him and brought him before Mr. Thompson on the same day. The prisoner moved for his discharge upon the following grounds: 1. That the affidavit on which the said commissioner's order of arrest was based, did not state facts sufficient to warrant the order. 2. That the cause of action in favor of Jung against the prisoner was merged in the judgment rendered, and was "thereby reduced to a simple indebtedness, upon which, in the absence of any

In re Kindling.

fraud committed subsequent to the judgment," Kindling could not be arrested upon a warrant under the statute regulating proceedings supplementary to execution. 3. That said statute is in conflict with the constitution of this state, and void. 4. That, inasmuch as defendant was arrested and held to bail prior to judgment in said cause, and the plaintiff therein had elected to issue execution, not against his body, but against his property, and after such last named execution was issued, the prisoner was discharged from custody by order made in said cause, the plaintiff could not now resume proceedings against the body. The motion for discharge was denied. The prisoner then objected to being examined under oath as to his property, on the ground that the affidavit on which Commissioner Thompson's order of arrest was made, showed that the cause was prosecuted to recover for property alleged to have been stolen by the prisoner in some foreign country, in which sec. 89, ch. 134 of the revised statutes of this state, would not be a protection against the use of this examination as evidence against him in a criminal action, and therefore he could not be compelled to submit to such examination without a violation of sec. 8, art. I of the constitution of this state. The objection was overruled, and the oath usual in supplemental proceedings administered.

The prisoner having testified that he left Berlin, in Germany, about the first of September, 1874, and arrived at Milwaukee in December following, was asked: "What did you do with the eight Austrian bonds, of one thousand guilders each, which you took from the plaintiff?" He refused to answer this question, on the ground that the answer might tend to convict him of crime in this state or elsewhere; and the commissioner adjudged him to be in contempt for such refusal, and delivered to the sheriff a warrant for his commitment for such contempt. This warrant recites, inter alia, that said Kindling had been arrested upon said commissioner's previous warrant, and commands the sheriff to commit him to the county jail, and

In re Kindling.

there keep him "until he shall stand ready to make full and proper answer to said question, or until he be discharged by due course of law."

The prisoner thereupon applied to this court for a writ of habeas corpus cum causa. The petition stated that his confinement, after the delivery to the sheriff of the warrant last described was "under and by virtue of said warrant, and without other authority or pretense of right."

The writ of habeas corpus having issued, the sheriff made return thereto on the 17th of August, 1875, in which he stated, inter alia, that the order for the discharge of Kindling, made by Commissioner Hunter on the 4th of August, was served before Commissioner Thompson's first warrant of the same date for the arrest of the prisoner was issued; but that, being advised that said order of discharge was void in law, he (the sheriff) still held said Kindling by virtue of the original order for his arrest. The substance of the other facts stated in the return has already been given.

Matt. H. Carpenter, for the petitioner, contended, that by the terms of the statute which is relied upon as authorizing supplementary proceedings against a judgment debtor (Tay. Stats., 1565, § 100),* such debtor can be arrested upon the

*The statute contains the following provisions: '$ 100.

66

After the issuing of an execution against property, and upon proof by affidavit of a party or otherwise, to the satisfaction of the court or a judge thereof, a county judge, or a court commissioner, that any judgment debtor residing in the county where such judge or officer resides, has property which he unjustly refuses to apply toward the satisfaction of the judgment, such court or judge, county judge or court commissioner, may by an order require the judgment debtor to appear, at a specified time and place, to answer concerning the same; and such proceedings may thereupon be had for the application of the property of the judgment debtor toward satisfaction of the judgment as provided upon the return of an execution. On an examination under this section, either party may examine witnesses on his behalf, and the judgment debtor may be examined in the same manner as a witness. Instead of the order requiring the attendance of the judgment debtor, the judge or county judge or court commissioner may, upon proof by affidavit, or other

In re Kindling.

court commissioner's warrant only upon proof, to the commissioner's satisfaction, first, that there is danger of the debtor leaving the state or concealing himself, and, secondly, that he has property which he unjustly refuses to apply to the judgment; that it is not enough to show that the judgment plaintiff or his attorney believes these things, but there must be evidence of facts satisfying, or tending to satisfy, the judicial mind of the commissioner; that the affidavit upon which Commissioner Thompson's warrant in this case was obtained, furnishes no proper proof either that plaintiff had property, or that he ever refused to apply it to the judgment, or that such refusal was unjust; that there can be no refusal to apply property in a particular manner until there has been a demand for such application, which is not here pretended; that every refusal, upon demand, to apply property to a particular judg ment, is not necessarily unjust; that an affidavit under the statute should show possession of some particular property, describing it, and a request made upon and refused by the debtor to apply that particular property; and that the peti

wise, to his satisfaction, that there is danger of the judgment debtor's leaving the state or concealing himself, and that there is reason to believe he has property which he unjustly refuses to apply to such judgment, issue a warrant requiring the sheriff of any county where such debtor may be, to arrest him and bring him before such judge, county judge or court commissioner.

"§ 101. Upon being brought before the judge or court commissioner he may be examined on oath, and if it then appears that there is danger of the debtor's leaving the state, and that he has property which he has unjustly refused to apply to such judgment, he may be ordered to enter into an undertaking, with one or more sureties, that he will from time to time attend before the judge or court commissioner as he shall direct, and that he will not, during the pendency of the proceedings, dispose of any portion of his property not exempt from execution. In default of entering into such undertaking, he may be committed to prison by warrant of the judge, or court commissioner, as for a contempt. No person shall, on examination pursuant to this chapter, be excused from answering any question on the ground that his examination will tend to convict him of the commission of a fraud, but his answer shall not be used as evidence against him in any criminal proceeding or prosecution."

In re Kindling.

tioner could not be in contempt for refusing to answer questions put to him in an examination based on such void warrant. Blair's Case, 4 Wis., 522; Remington's Case, 7 id., 643; Whitney v. Brunette, 15 id., 61; Miller v. Brinkerhoff, 4 Denio, 119; Den v. Turner, 9 Wheat., 541; Staples v. Fairchild, 3 Coms., 46. 2. That the statute under which the proceedings were taken (Tay. Stats., 1565, §§ 100, 101) is void because in violation of sec. 16, art. I of the state constitution, which declares that "no person shall be imprisoned for debt arising out of or founded on a contract expressed or implied;" that every statute which would produce, though by indirection, a result forbidden by the constitution, is invalid (Bronson v. Kinzie, 1 How. (U. S.), 318; The Passenger Cases, 7 id., 283); that as to proceedings in judgments upon actions founded on contract, the repugnancy of the statute to the constitution is clear (Bank v. Pugsley, 47 N. Y., 638, and compare the remark of COLE, J. in Remington's Case, 7 Wis., 655, and the reasoning of the court in Blair's Case, 4 id., 522); and that the proceedings cannot be upheld in this case on the ground that the judgment is in an action ex delicto, for two reasons: (1) Because by the law of this state a debtor, in cases ex delicto, may be arrested and held to bail before judg ment, and taken in execution against the body after judgment, and may be relieved after ten days' imprisonment, in the manner pointed out by the statute; but by issuing execution against the debtor's property, and taking these proceedings in aid of such an execution, the judgment plaintiff elected not to proceed against the debtor as a tortfeasor; and (2) Because this is not a case where one part of a statute is constitutional, while other distinct provisions are unconstitutional, but one in which the legislative provision is indivisible, and, being unconstitutional in its scope, must be regarded as wholly void, "although there may be a class of cases to which it might properly apply." SELDEN J., in Wynehamer v. The People, 13 N. Y., 442; Slau