The question whether the plaintiff is entitled to relief or assistance, in this case; and, if she is, what should be its nature and extent; must depend on the character of her bill or petition.
The defendant, in the first place, treats this application as an original bill, addressed to a court of equity, the object of which is to obtain the assistance of that court, in enforcing, or enabling the plaintiff to enforce, the judgment of a court of law, rendered merely for a sum of money; the judgment or decree for alimony on the petition for a divorce, being claimed to be of that character; and he insists, that the ordinary principles established in chancery with regard to bills of that description, should be held applicable to this case, and are opposed to the claim of the plaintiff for any relief.
The application is not very technically drawn, and would certainly furnish a strong ground for this claim, if the case presented a judgment of an ordinary court of law in her favour for a mere debt or sum of money; and if that were the proper light in which it should be regarded, we are not prepared to say, that the objections of the defendant, to the interposition of the court to which it is addressed, should not prevail. Whether, however, in that case, the application should be dismissed, we do not think it necessary to determine, because the plaintiff does not press the application on that ground; and on looking at the main averments in it, and the general object which the plaintiff manifestly has in view, as derivable from the relief which she professes to seek, we are induced to consider it as what would be termed in a court of law, a motion, or, in a court of equity, a petition, for such interposition as is necessary for the enforcement of the order or decree allowing alimony to the plaintiff, on her petition for a divorce, and, therefore, for the requisite process, in the case in which that order or decree was pronounced, for the execution of such order or decree, rather than as a distinct, independent, original bill in equity, brought in aid of a judgment of a court of law, or of a decree of a court of chancery in another or former suit. We view the present application only as one for further proceed*193ings in the original suit for a divorce, and as really no more than a continuation of that suit, and therefore, as being no more disconnected from the order or decree which it seeks to enforce, than a motion or petition for an attachment for a contempt, where there is a wilful disobedience of an injunction, or any other order or decree of a court for the performance of a specific act. There are, indeed, several matters contained in the application, which seem to have been suggested, by an expectation or idea of some further contestation of facts between the parties; such as the averments respecting the concealment, and fraudulent disposition by the defendant of his property, with a view to elude the performance of the decree for alimony, or defeat its enforcement; and also the prayer, not only for an attachment for contempt, but a disclosure by the defendant of his property, an injunction against any further disposition of it, and an appropriation of it for the satisfaction of that decree: which allegations furnish a colour for the claim of the defendant as to the character of the proceeding.
But, in addition to the facts thus alleged and that prayer, it contains a statement of other facts independent of them, with regard to the manner, and motive, and avowed object of such concealment and disposition, accompanied with a petition for an attachment against the defendant as for a contempt of the authority of the court, which, if it is sufficient to warrant its interposition, and is supported by proof, is to be considered as a distinct branch of the application, presenting an independent ground for the exercise of its power, and one which, in our opinion, cannot, with propriety, either as it respects the general administration of justice, or the particular rights of the plaintiff in this case, be disregarded. This application being thus framed, we perceive no good reason why it should receive its technical or distinctive character from the allegations contained in it, which are urged by the defendant, rather than from those relied on by the plaintiff for that purpose, especially, if the latter constitute a valid ground for the interposition of the court to which the application is addressed, and it be true, as claimed by the defendant, that the former are insufficient to warrant any relief or assistance.
The case is, moreover, presented before us, only on its merits, *194after a hearing, and finding of the facts, and without any formal or technical exception having been taken, by plea or otherwise, to the mode of instituting the proceeding. Exceptions of that character are now entitled to no favour, even if they would have prevailed, if specially and regularly taken, in an earlier stage of the proceeding. We think, therefore, that this application should be entertained, by the superior court, as a petition, in the case in which that court decreed a divorce and alimony to the plaintiff, for an attachment against the defendant, grounded on his disobedience to that decree in not furnishing such alimony.
The view thus taken by us of the nature of this proceeding, disposes of the plea in abatement, as such, interposed by the defendant, founded, first, on an alleged variance between the application and the copy of it left with the defendant; and, secondly, on the pendency, when this proceeding was instituted, of an action at law previously brought in the superior court, for the recovery of the sum decreed to the plaintiff as alimony, on her petition for a divorce; and renders it unnecessary for us to consider whether, if this were an original bill in equity, of the character claimed by the defendant, it ought to be abated, on either of those grounds. The arguments urged in support of that plea, being founded on the claim that this is a bill of the description last mentioned, clearly cannot prevail as an exception of that kind, since it is determined not to be a proceeding of that character, but merely a motion or petition in the original proceeding for a divorce. But although, on such a motion or petition, no such technical exception is known or recognised as a plea in abatement, still, if the facts stated by the defendant in that plea are sufficient, to quash such motion or petition, it is but justice to him that he should have the benefit of them for that purpose.
With respect to the variance claimed, it is a mere verbal and immaterial discrepancy between the original and the copy, obviously happening accidentally, which produced no essential change of meaning between them, and which could not mislead the defendant as to the nature or object of the application. On a point of mere practice, (for this is nothing more,) respecting the notice to a party of a motion in a cause to be made by the other, it is hardly necessary to say, that it *195should not be set aside for a slip of this trifling character. Indeed, no such variance as this would prevail, even on a plea in abatement, where the question would be one of law, and not, like the present, of discretion.
Nor have we less doubt of the invalidity of the pendency of the action, brought by the plaintiff, on the decree for alimony, to quash this application. If such an action can be sustained, the most that can be said of the remedies sought by the two proceedings, is, that they are merely concurrent; and one, therefore, cannot supersede the other. It might, with as much force, be urged, that an action of debt or a judgment would prevent the issuing of a writ of execution on such judgment; as that the action at law founded on the decree in this case, should defeat this application. Indeed, it is not claimed, by the defendant, that the cases cited by him go to any such extent, or that they are applicable to this proceeding, in the view which we take of it.
We do not deem it necessary to discuss, with any minuteness, the question which has been much argued by the defendant, whether the jurisdiction conferred on the superior court to grant divorces in particular cases, with the other incidental powers respecting alimony, the change of the name of the wife, and the custody of the children of the marriage, is strictly of a legal or equitable nature. The decision of it, in a general form, would, in this case, lead to no profitable result. The jurisdiction on this subject is of a special character, and is given to the superior court generally, without designating, in terms, whether it is to be exercised as a branch of its legal or equitable powers; both of those different kinds of jurisdiction being, in this state, vested in the same judicial tribunal, and administered by the same judges, not distinguished in the exercise of their powers, by any difference of name, or style of address or description. As to the form and manner in which proceedings for divorce are to be commenced and prosecuted, it is very plain, from the act on that subject, that they were intended to be similar to those in suits in equity. Stat. tit. 7. ch. 2. p. 271. Indeed, independent of any express statutory regulations, in this respect, it is quite obvious from the nature and object of those proceedings, that such must be the case, since the form of no action or proceeding at law would be *196appropriate or adequate for the purpose. The decree of divorce in these cases, by its own force, dissolves the marriage contract and relation between the parties, and leaves them single and unmarried.
In regard to the rights of the parties consequent upon the divorce, to which they may be adjudged to be entitled, where the decree respecting them does not, of itself, operate so specifically as to be the means of its own execution, but is, in order to be effectual, so framed as to require particular acts to be done by one of the parties, it was undoubtedly the intention of the legislature to invest the court, in this as in all other cases, where it has the right to render judgments, decrees and orders, with such power and authority as should be necessary to carry them into full effect. Such power is, from the nature of a judicial tribunal, necessary, and inherent in its very constitution. Without it, it would hardly be invested with the efficiency, or entitled to the respect, even of an advisory tribunal. In carrying their decisions into execution, courts will adopt those processes which are established by precedent, and have thus received the sanction of law, where they are adequate for the purpose, but where they are not, would feel authorized and bound to devise other modes, which should be effectual to that end, being careful, however, not to exceed its constitutional and legal authority. In the present case, however, we do not consider it necessary, if the plaintiff is entitled to the assistance of the superior court, that it should resort to any newly devised means of coercion against the defendant; since no such process has been applied for; and it cannot be anticipated, that the established and ordinary, though, happily, rare mode of proceeding, by attachment for contempt, will not be effectual.
The question then arises, whether it is competent and proper for the superior court, in the present case, to enforce its decree for alimony, by such process of attachment. It appears, that that court passed a decree divorcing the plaintiff from her husband, the defendant, and ordering, that he should pay to her, within the time therein mentioned, and which has long since elapsed, the sum of five thousand dollars, as alimony. It further appears, that he has abundant means at his command for the payment of said sum, but *197that he has not only neglected and refused to pay it to the plaintiff, although requested so to do, but that he has, for the purpose of depriving her of her rights under the decree, and preventing its execution, concealed of disposed of his property in such a manner that no part of it can be discovered or reached, in any mode, by the plaintiff. And for this conduct of the defendant no explanation or excuse, if indeed it would admit of any, has been offered. The defendant insists, that this decree stands on the same ground as a judgment of a court of law, or an ordinary decree in a court of equity, for the payment of a mere debt or sum of money, and is to be enforced, as in those cases, in the first instance, only by the accustomed writ of execution, and subsequently, if necessary, by an appropriate resort to a court of equity; and that an enforcement of this decree, by process of contempt, for a non-compliance with it, would deprive the defendant of the exemption from imprisonment, or, in cases of imprisonment, of the privilege of the oath provided by law for poor debtors, to which he would be entitled on an ordinary writ of execution. That such would be the mode of enforcing an ordinary judgment or decree, in those cases, need not here be controverted. But we are of opinion, as claimed by the plaintiff, that a decree, on the granting of a divorce for the payment of a sum of money to the plaintiff as alimony, is different in its character from those to which it is thus compared by the defendant.
Alimony is a certain part or proportion of the husband’s estate, which is allowed and assigned to the wife, upon their divorce. The word alimony is not used, although the idea conveyed by it is clearly embraced, in our statute of divorce, on which the decree in this case was founded, which provides, that “the superior court may assign to any woman so divorced, such reasonable part of the estate of her late husband, not exceeding one third part thereof, as in their discretion, the circumstances of the case will admit.” Stat. tit. 7. ch. 2. p. 275. The court does not, under this provision, decree and assign alimony, as a debt due to the wife, or as damages to be paid to her, by her late husband, on their divorce, but as a part or proportion of his estate, fixed by the court, in its discretion, and appropriated to her, and to which she thereupon becomes legally entitled. Such decree *198and assignment is specific in its character, and operates as a division or partition, between the husband and wife, of his property, in such proportion as the court, by its decree, determines. Where his property consists of real, or ordinary personal estate, which can be specifically divided, the court will, itself, or by a committee appointed for that purpose, apart to her such portion of his property as is assigned by the decree. Where it consists of property which is not capable of such a division, such as money in his hands, the court determines the sum which the wife shall receive, and directs, that the husband shall pay it to her, within such time as it shall deem reasonable; and such decree obliges him to perform the act, so directed to be done, specifically. The nature and effect of such a decree is the same as that of an ordinary decree of a court of equity for the specific performance of any other act. As the present case does not require it, we abstain from expressing any opinion as to the legality or propriety of the practice, which has somewhat extensively prevailed, in the superior court, under the provision of the statute which has been mentioned, respecting the allowance of alimony, of directing the payment of a certain sum of money, by the husband, to the divorced wife, where his estate consists of corporeal, tangible property which is capable of a division, in lieu of a literal compliance with the statute, by appropriating to her specifically a particular portion of such estate. Nor would we intimate, that the statute, by a just and equitable construction, does not sanction such practice where the court shall deem it expedient. The decree, in the present case, does not, however, appear to be of that description; and no objection is, nor do we perceive that any can be, made to its validity.
Such being the character of the decree, in this case, we consider it analogous to those decrees of courts of equity, which enjoin specifically, or prohibit, the performance of particular acts, among which the granting of injunctions is of the most frequent occurrence. In those cases, it is usual with us, to prescribe a penalty for disobedience; but that is, in many cases, an inadequate or ineffectual provision; and although until somewhat recently, process for contempt has not been resorted to, in such cases, it is now frequently adopted; and we not only perceive no objection to it on *199principle, but consider it as a most proper and salutary mode of proceeding, where the exigency of the case requires it. That it is one of the established and customary modes of enforcing such decrees of courts of equity as we have just mentioned, is too clear from the treatises on the practice of those courts, as well as the reports, to require the citation of authorities; and to that practice we think that the superior court should conform, in cases like the present.
The disobedience of the defendant to the decree of that court, in this instance, is palpable, wilful, and utterly inexcusable; and therefore constitutes, beyond a doubt, what is termed a contempt, which is well described, by an eminent jurist, (Judge Swift,) who defines it to be “a disobedience to the court, by acting in opposition to the authority, justice and dignity thereof,” and adds, that “it commonly consists in a party’s doing otherwise than he is enjoined to do, or not doing what he is commanded or required by the process, order or decree of the court; in all which cases, the party disobeying is liable to be attached and committed for the contempt.” 2 Sw. Dig. 358.
We therefore advise the superior court, to issue an attachment for contempt, against the defendant, on his not shewing cause to the contrary, on a rule for that purpose.
In this opinion the other Judges concurred.Attachment for contempt issued, (a)
As the ulterior proceedings, in this case, may be of general interest, and useful in practice—to the profession at least—I subjoin a statement thereof ex relatione amici.
At the term of the superior court, in October, 1851, the case, having come back from this court, Dutton and Loomis, soon after the commencement of the term, moved for process of contempt against the defendant. This was resisted, by Hawley, his counsel, claiming, that the decision of this court was only, that process should issue, if the defendant refused to disclose, or did not make a satisfactory disclosure. Application was thereupon made to Ch. J. Church, and a statement of the decision obtained from him. The counsel for the plaintiff then moved the court to assign a time for the defendant to appear, and shew cause why such process should not issue. The court assigned a day about a fortnight thereafter. Before the day arived, however, the plaintiff’s counsel, fearing that the defendant would leave the state, and thus evade the process, drew up an application to the court, stating, that the defendant had, notwithstanding the decision of this court, refused to pay the 5,000 dollars alimony, and had spoken with con*200tempt of the court, and its order; had expressed a determination to disobey it; and had used language importing a purpose to go beyond its jurisdiction; to which statement the plaintiff made affidavit. This being presented to the court, the plaintiff prayed, that a writ of ne exeat should issue forthwith; claiming, that the defendant might, and probably would, if he knew of the application, immediately place himself beyond the reach of process. This was opposed by the counsel for the defendant; who urged the court to grant him time to look at a proceeding, which, so far as he knew, was without a precedent in this state. But the court (Hinman, J., sitting,) said, he thought such a proceeding was just and reasonable. Thereupon a writ was issued, signed by the clerk, and directed to the sheriff, counting on and setting forth, in substance, the allegations in the application, and stating, that they were verified, by the oath of the applicant. This writ directed the officer to cause the defendant to give a bond, with surety, in the penal sum of 7,000 dollars, payable to such officer, or his successor in office, conditioned that the defendant would not leave the state, without permission of the court; and if he should refuse to give such bond, the officer was thereby directed to commit him to the common gaol in the county, and deliver to the gaoler a certified copy of the writ, with his doings thereon indorsed; and the gaoler was directed to keep him safely, within the prison, until he should give such bond, or be discharged according to law. The officer was also directed to make return to the court of the writ. The sheriff called, the next morning, on the defendant with the writ; and after some hesitation, he gave the bond required. When the day assigned for the hearing arrived, the defendant provided for the payment of the alimony, with interest and costs.