The bill having been dismissed as to the wife of Kauffman, the judgment debtor, upon the allowance of her demurrer, the vice chancellor clearly had no right to order her to be examined as a party to the suit, over whom he had jurisdiction in that character. Indeed the order of reference only authorized the examination of witnesses before the master, as to the property and effects of the judgment debtor, and as to other matters charged in the bill. Even to that extent, the original order was erroneous in authorizing an examination relative to other matters charged in the bill. For the defendant had not consented to submit to an examination upon a reference to appoint a receiver, under the 191st rule, as a substitute for an answer. (Hopkins v. Wemple, ante, p. 571.) And the order itself contained no direction to the defendant to deliver over his property on oath or otherwise; so as to render it necessary to examine either parties or witnesses for the purpose of ascertaining whether that part of the usual order in such cases had been complied with by the defendant. The court never orders a reference in such a case for the mere purpose of authorizing the complainant to hold an inquisition to hunt up testimony, to be after-wards used in the cause, to enable him to collect his debt. Previous to the appointment of the receiver it might be necessary, for the purpose of the reference to examine witnesses as to the nature and extent of the defendant’s *588property ; for the purpose of enabling the master to decide who would be the proper person to be the receiver of such property, and the amount of the security which he was to give. But after that had been done, every legitimate object of the reference in this particular case would appear to have been accomplished, had not the order contained this further power to examine witnesses to prove the allegations in the complainant’s bill, that the defendant had property, &c. But as that order was not appealed from, the defendant cannot, upon the appeal from this subsequent order, insist that such an order was erroneous, and ought not to have been made. The only proper question for examination upon this appeal, therefore is, whether the wife of the defendant shall be examined as a witness against him under this order, to obtain a discovery of property, which may aid the complainant in obtaining a decree against him or his property.
If a creditor’s bill is a proper proceeding against a lunatic, to enable the judgment creditor to obtain satisfaction out of his estate, and the property is actually in the possession and under the control of his wife, so that the complainant would be entirely without remedy unless he could obtain a decree against her for the delivery of such property, I am not prepared to say that a bill in chancery might not be so framed as to reach that case. But I think the guardian ad litem of the husband, in this case, had a right to object that the wife should not be compelled to submit to an examination, as a witness, for the mere purpose of obtaining a discovery of her husband’s property. In any proceeding against a third person, by the receiver, in which the husband himself would not be disqualified or excused from giving testimony, on the ground of interest or otherwise, his wife may also be compelled to testify as a witness in the cause. But it is well settled that she cannot be a witness either for or against him in any civil suit to which he is a party. And he has a right to insist that she shall not be compelled to answer on oath, as a witness, for the mere purpose of aiding the proceed*589ings of the complainant in such a suit against him. It is only necessary to refer to the decision of this court in the case of The City Bank v. Bangs and others, (3 Paige’s Rep. 36,) and the cases there cited, for the settled rule of law on this subject. Under the bankrupt and insolvent statutes, this principle of the common law has been dispensed with, to some extent; by express enactments requiring the wife to submit to an examination as to the situation and disposition of her husband’s property. But under those statutes the' husband receives a corresponding benefit, in being discharged from his debts upon delivering up his property for the. benefit of his creditors ; or at least he gets discharged from imprisonment for debt. If the common law rule on the subject requires a modification in other cases, it belongs to the legislature and not to the courts to give the proper relief.
The order appealed from must therefore be reversed; and the costs of the guardian ad litem of the defendant Kauffman, both upon the appeal and upon opposing the application before the vice chancellor, must be costs in the cause; to be paid to such guardian personally, if he succeeds in the defence of the lunatic in the suit.