NewMAN, J.
Some questions arising in this matter were before this court in In re Rosenberg, 90 Wis. 581. That was an application for a writ of habeas corpus. It was considered that, on that application, only the jurisdiction of the committing officer to make the order in any supposable circumstances which might arise in the progress of the cause in which it was made could be considered; that the proceedings out of which the order arose, and the regularity of the order itself, could not be adjudged in that proceeding. It was considered that the contempt contemplated by the order of commitment was the contempt of contumacy in refusing to make such full and truthful discovery of the property of the defendants as it was in the power of this defendant to make, by evasion and simulated ignorance; and that the court had power to punish such contumacy, summarily, as a contempt committed in the immediate presence of the court, by commitment until he should make such discovery; and that it was a civil contempt, punishable under ch. 150, E. S. This seems, upon the whole record, to be the true view of the purport of the proceedings.
The court had made no order that the defendant should make and submit a written statement of the property of the firm. What the judge said was by way of intimation of the scope and extent to which he deemed that the discovery should be required to reach. He gave the defendant’ time to enable him to make such discovery. He did not reduce his intimation to the form of an order, but left it oral. It was not an order either in form or intention. This is clearly *528evidenced by what transpired on the adjourned day. The judge did not at once commit the defendant upon his failure to produce a satisfactory written statement, but proceeded with the attempt to procure discovery by oral examination, until satisfied that further examination would be equally futile, by what he evidently deemed the defendant’s persistent evasion and assumed ignorance. Being satisfied that the proper discovery was being thwarted by the defendant’s contumacy, rather than by his inability, it was deemed necessary to the proper administration of justice, and to conserve the power and honor of the court, to punish him summarily, as for a contempt committed in the immediate presence of the court. If the court correctly diagnosed the difficulty, the remedy which he applied has the sanction of law. This court would not reverse a proper order in such ■a case except in a plain instance of mistake or abuse of power.
But in this case it is to be inquired whether the order act.ually made was justified in the actual circumstance. It seems clear from what has been said that a proper order which should commit the defendant until he should make full and truthful discovery of the property of his firm would not be so clear an abuse of the power of the court as would require its reversal by this court. The order actually made seems to do this. The most serious criticism upon it is that it speaks of the suggestion which the judge made about the furnishing of a statement of the firm’s property as an order, ■and committed the defendant, in form, until he should comply with that order. This is, at least, an infelicitous statement of the real ground of the commitment. But whether this inaccuracy should be deemed to be so far of the substance .of the order, where the substance of the thing intended is plain by the proceedings, as to require the reversal of the order on that ground alone, may well be doubted. But that can be no longer a controlling question; for that •order has been greatly modified, and, in important particu*529lars, superseded, by the order of December 10, 1895. By that order it is adjudged that the defendant has within his control $10,000 m- money, of the proceeds of the goods of the defendant firm; and he is required to pay over that sum to the receiver vmmediatély. Of course, the order goes upon the theory that his possession of that sum is satisfactorily shown by the examination. So, he is now, inferentially at least, in commitment for not paying over the sum of $10,000, which he has, to the receiver, and until he shall pay over that sum. Of course, the propriety of this order depends upon the fact that the evidence does really establish that the defendant really has such a sum of money actually within his power. If he has money .of the firm within his power, it is then within the clear purpose of the law, and of the proceeding, to coerce him to pay it over to the receiver. But, if he has not the money actually within his power, it is signal cruelty to imprison him for not paying the firm’s debt. The defendant denies absolutely that he has either property or money of the firm within his power or knowledge. There is no direct evidence that his denial is not true. The court’s conclusion seems to rest exclusively upon the inference that, because the defendant firm had a large amount of property some two years ago, the defendant has it now. This is hardly a satisfactory basis for so severe a proceeding. The experiences of business men show that such a conclusion is often a very violent non sequitur from such premises. The logical consequences of such reasoning will often produce the greatest of injustice. It is not always possible to discriminate justly between the misfortunes of honest enterprise and the feigned disasters of the sharper. It was not the design of sec, 3029 to revive the power and practice of imprisonment for debt. That absurdity has long since been relegated, by the advance of civilization and the melioration of the rigors of ancient remedies, to the limbo of the obsolete barbarisms of the law. Its revival in modern *530jurisprudence would be to create an anachronism. No man can be imprisoned for mere inability to pay his contract debts, nor for failing to pay over to a receiver money which he does not have. Nor should there be involved in the modern administration of jurisprudence any considerable peril, of such consequences. A commitment for failure to pay over money ordered to be paid should never be made unless-the evidence shows clearly and satisfactorily that the party has the money within his power, and so has the present-ability to comply with the order. Only so can the liberty of the citizen be adequately conserved. This rule cannot be-unjust to creditors. It would be a deplorable result to punish, by too much liberality of surmise, the misfortunes of the honest but unfortunate debtor.
It is clear that the finding that the defendant has within his power $10,000 of the firm’s funds is largely.arbitrary and conjectural, based mainly on inference and surmise. It is supported by no direct, positive proof. And, judging of the situation as disclosed, there seems to be a possibility that, the firm’s assets, if, indeed, any of the firm’s assets still remain, are within the power of others, and not subject to the-defendant’s power; amounting to a probability almost or quite as strong as that they are within the defendant’s power. The order of December 10,1895, should not have been made. It has no sufficient support in the evidence. The defendant had been in .jail more than a full year under the first order: He should have been released.
By the Court.— The orders are reversed, and the cause-remanded with direction to discharge the defendant.
A motion by the respondent to offset the judgment for costs in this court against the judgment of the circuit court entered December 11,1891, was granted May 21, 1896.