— The appeal is prosecuted from an order of the court, refusing to commit the appellee for a contempt upon the petition of Adair Bros. & Co.
D. M. Gilmore became indebted to appellants for the purchase of fertilizers, and to secure the payment, under an agreement to that effect, delivered to them certain notes as collateral. By the terms of the agreement the title and ownership of the collateral notes became vested in Adair Bros. & Co. These collateral notes were 3ubse-*438quently sent to Gilmore for collection, who received them as shown by his receipt as their agent. The debt of Gilmore not being paid at maturity, the appellants sued and recovered judgment in the circuit court of Gull-man county against Gilmore, at the spring term, 1888, for six hundred and ninety-five and 11-100 dollars. After execution and return of no property found, the appellants filed their bill in the chancery court, in which complainants averred their ownership of the collateral notes, their delivery to Gilmore as their agent, the collection of large sums of money by him, a demand for the money, and the return of the uncollected notes, and his refusal. The bill prayed for. a discovery and an accounting.
The record before us does not contain the answer of the respondent. At Chambers, on the 21st of November, 1891, the chancery court decreed that complainants were entited to relief, and referred the cause to the register to state an account and ascertain and report to the next term the amounts collected, and what disposition had been made of the collateral notes. The register reported that there was due complainants on their judgment nine hundred and twelve 90-100 dollars, and that there was a balance of fifteen hundred and seventy-five dollars collected from the collateral notes which respondent “has retained, used and spent for his own benefit,” and that there remained in notes uncollected “ one hundred and two 54-100 dollars which were in the hands of one J. W. Austin, Esq.” The report of the register was in all things confirmed, and by final decree on the report of the register, among other things, the decree declares that, “it further appearing to the satisfaction of this court that the defendant has collected and received into his possession from the collateral notes * * * ‘k which were the property of complainants fifteen hundred and seventy-five dollars, over and above the amount turned over by him to complainants, it is therefore ordered, adjudged and decreed that the defendant shall pay, turn over and deliver to complainants, or their solicitors of record, within sixty days from the service of the copy of this decree on defendant, the said amount of complainant’s property, or so much thereof as will be sufficient to satisfy said amount due by the defendant to the complainants. It is further ordered, adjudged and decreed that the uncollected notes, as shown by the reg*439ister’s report and. exhibit 0. thereto, be turned over and delivered by the defendant to the register of this court within sixty days from the adjournment of this'court,” &c.
The decree as to the payment of the money within sixty days not having been performed, the register, upon the application and affidavit of complainants, cited the respondent to appear at the next term of the chancery court, ‘ ‘to show cause why he should not be attached for contempt in so failing to comply with said decree.” The respondent made return to the rule nisi, and at the hearing the court discharged the rule nisi, and dismissed the contempt proceedings, and from this order the present appeal is prosecuted.
The answer by respondent to the rule is not controverted. The answer shows that as to the uncollected notes, the decree of the court was performed. That as to the money collected, it was used in the payment of attorney’s fees, court costs, debts and expenses of living and that this occurred before the filing of complainants’ bill, and that respondent has no means, visible or invisible, and did not have at the time of the rendition of the decree, nor at any time since, with which to pay said debt or to perform said decree; that he failed to comply with the decree wholly because of his poverty and insolvency, and not from willfulness or contumacy. There is no evidence in the record which conflicts with this statement of the facts.
The original bill did not aver that the respondent had in possession or under his control' either the money collected or the collateral notes, and considering the decree of the chancery court as “granting the relief prayed for” and in confirmation of the report of the register, we do not construe it as having ascertained and decreed that the respondent then had in possession or under his control the money collected from the collateral notes or any money, and which he was ordered and adjudged to pay over, nor a decree ascertaining that the respondent had property or effects, liable to the satisfaction of complainant’s debt; which he was ordered and required to turn over or surrender. The decree of reference and report of the register and decree show a breach of trust, but not a fraudulent conversion of the money. The case does not require the consideration and determination of *440the question as to whether a chancery court has authority to compel the performance, by imprisonment, of a decree rendered against an agent upon an accounting under any circumstances; but we think it clear that when there is no evidence of a willful refusal to pay or of fraudulent withholding of money, and the uncontroverted facts show an inability to perform, and there is no evidence that the party intentionally put himself in that condition,- after the rendition of the order, or in anticipation thereof, for the purpose of defeating the mandate, the case is not one which would justify an attachment for contempt. The foundation for the process of attachment for failing or refusing to obey an order or decree of court is the ability to perform, unless the party has brought about his inability intentionally to avoid the performance of the obligation. The principles of law discussed and declared in the opinion of the court, and in the dissenting opinion in the case of Ex parte Hardy, 68 Ala. 305, are entirely consistent with our conclusion in the case at bar, and both show that the decree of the court, discharging the rule, was free from error.
Affirmed.