Messrs. Asa E. Stratten, James Jack-court: son, and Isaac Orme for appellant.

Mr. W. C. Fitts, Attorney General, for in one count as the president, and in another as the State.

Again, in United States v. Walsh, Deady, 281, 285, 1 Abb. (U. S.) 71, it is stated: "The word 'debt' is of very general use, and has many shades of meaning. Looking to the origin and progress of the change in public opinion, which finally led to the abolition of imprisonment for debt, it is reason-prisonment for debt coextensive with the 1st and able to presume that this provision in the state Constitution was intended to prevent the useless and often cruel imprisonment of persons who, having honestly become indebted to another, are unable to pay as they undertook and promised to.

2d sections of the Statute of 1842, leaving it to the legislature to define what should constitute fraud, and therefore the statute, after the Constitution was established, stood in harmony with its provisions, and was not repealed by it.

from Robert T. Abernathy for deposit $355, | under an act "to Prevent Banks, Bankers, knowing at the time, or having good cause to Firms, Corporations, or Other Persons from believe, that said firm was in a failing or in- Receiving Deposits of Bank Notes, Specie solvent condition. The indictment is drawn Money or Other Thing of Value, when in a

The provisions in Wis. Const. § 16, art. 1, "no per- | use. People, Singer Mfg. Co., v. McAllister, 19 Mich. son shall be imprisoned for debt arising out of or founded on contract, express or implied," clearly implies that there may be debts "not founded upon contract." Smith v. Omans, 17 Wis. 395, 397.

In Ruddell v. Childress, 31 Ark. 511, proceedings were taken by a surety against his principal under $5694 of Gantt's Digest, which provides that a surety may maintain an action against his principal to obtain indemnity against the debt or liability for which he is bound before it is due, whenever any of the grounds exist upon which, by the provisions of chapters 8 and 9, an order may be made for arrest and bail or for attachment; and it was held that such proceedings were not contrary to the provisions contained in § 14, art. 1, of the Constitution of that state of 1868, which prohibits imprisonment | for debt, but provides that the general assembly may provide for imprisonment or holding to bail persons charged with fraud in contracting said debt, the court stating that such a case was not the arrest of a debtor for debt, but was a proceeding to indemnify the surety in the manner pointed out by the section.

An amount due upon an open account was held to be a debt within the meaning of art. 1, § 15, of the California Constitution. Re Vinich, 86 Cal. 70.

So, the Michigan 'Constitution having abolished imprisonment for debt, except in certain cases therein set forth, an alleged balance between a principal and agent for which an action of debt is brought does not come within the exceptions to the Michigan laws passed to carry out such constitutional provisions, even though there may be an allegation of a refusal to account, and of a fraudulent conversion of the same by the agent to his own

ALABAMA SUPREME COURT.

Failing or Insolvent Condition," approved De- |
cember 12, 1892, which is in the following
words:

sued upon a judgment recovered in an action founded upon contract, express or implied, was meant to embrace all kinds of contracts, whether by record, specialty, or parol. Therefore a judgment is a contract within the meaning of § 63 of chapter 28 of the Vermont Revised Statutes, and an execution obtained in an action of debt upon a judgment rendered after January, 1838, cannot be issued against the body of the debtor. Sawyer v. Vilas, 19 Vt. 43.

And in that state on all judgments rendered on contracts accruing before the 1st day of January, 1839, the creditor was entitled to an execution against the body of the debtor with some exceptions, but on judgment rendered on contracts, express or implied, made or entered into after that date, no writ or execution could issue against the body of the debtor if he was a citizen of Vermont. The statute which took away the remedy against the body of the debtor in the latter contracts made no provision for a case where the judgment was rendered on different contracts, some of which were before and some after that date. But the courts of that state were of opinion that if a party voluntarily embraced in any one declaration several acts on different contracts and several on which he would have been entitled to a capias, and on the others would not have been so entitled, he could not on such judgment have an entire execution against the body of the debtor, and the same prin. ciples would apply to a recovery in an action on a book account where part of the demand was since the passing of the statute abolishing imprisonment. Witt v. Marsh, 14 Vt. 303, 305.

Where, in a judgment on the report of an auditor, the court granted a certified execution as to so much of the judgment as was for money held in a fiduciary capacity, and the writ issued as an attachment, and the defendant took exception under the Vermont Statute, § 1726, which provides that no person who is a resident of the United States shall be arrested or imprisoned on mesne process, issuing on a contract express or implied, nor on an execution issued on a judgment recovered in an action founded on such contract, except as hereinafter provided, it was held that as part of the judgment was not for a fiduciary debt, it was for a liability incurred when the defendant contracted to guarantee certain sales, and therefore a judgment founded in part upon the defendant's contract of guaranty could not be enforced against his body, nor could an execution on such a judgment lawfully issue against the body, the section of the statute in question expressly prohibiting the arrest upon a judgment founded in contract, and the statute nowhere provided for the arrest and imprisonment of a debtor on an execution issued on such a judgment as was recovered in that action, Williams & C. Fertilizer Co. v. Rudd, 68 Vt. 607.

In Hosack v. Rogers, 11 Paige, 603, it was held that since the passing of the New York act abolishing imprisonment for debt, a final decree against an executor for the payment of a debt due by the testator can only be enforced by execution against the individual property of the executor, where he has wasted the funds which came into his hands, the decree being made in a suit instituted for the recovery of money due upon a contract, and merely directing the payment of money in satisfaction of the amount due.

Where the action was brought on a warranty, but the narr. was in assumpsit, alleging fraud in the warranty, the court held that a ca. sa. would not lie. Fleming v. Maguire, 14 W. N. C. 210. The Pennsylvania Constitution abolishes imprisonment 34 L. R. A.

APR.,

bly of Alabama, that any president, cashier, or "Sec. 1. Be it enacted by the general assemother officer, by whatever title he may be called

for debt except in cases where the debtor has not delivered up his property for the benefit of his creditors as prescribed by law.

required to find bail, and in default was committed Where defendant, an agent, was sued in trover to jail, and the plaintiff elected to take an alternative verdict for money, to be discharged on the defendant's delivering the package, and the defendant sought to be discharged upon the ground that he was imprisoned for debt contrary to the terms authorized a judgment for money, which, when en of the Constitution, the court held that the verdict tered, became a judgment for money, or the highest form of debt known to the law, and therefore contrary to the provisions of the state Constitution, the defendant's imprisonment for such debt was although, had the verdict been for the delivery of the package alone, it would have been against the property, and not for debt, and therefore would not have been within the constitutional provisions Southern Exp. Co. v. Lynch, 65 Ga. 240.

§ 3 of chap. 170 of the Minnesota General Laws of In Meyer v. Berlandi, 39 Minn. 438, 1 L. R. A. 777, 1887, known as the mechanic's lien law, which made the mere failure of a contractor, who had received his pay from the owner, to pay his laborors and materialmen, although he might not be guilty of any fraud, a felony punishable by imprisonment in the penitentiary, was held unconstitutional, as fairly repugnant to § 12 of art. 1 of the state Constitution prohibiting imprisonment for debt, isasmuch as it was a return to the old barbarous fiction upon which imprisonment for debt was originally did not pay it, was a trespasser against the peace based, namely, that a man who owed a debt, and and dignity of the Crown, and for this supposititious crime was liable to arrest and imprisonment.

has been held, in proceedings by way of audita So, the act of bail indorsing his name on the writ querela, to be a contract between the bail and the creditor, and as such within 8 63, chap. 28, of the Revised Statutes of Vermont, and therefore the ceedings by way of scire facias, was illegally issued; execution against the body of such bail, in proand that the plaintiff (the debtor) was entitled to his writ. Stoughton v. Barrett, 20 Vt. 385.

17, 33, it was held that under § 16 of the Kansas Bill And in Atchison Bd. of Edu. v. Scoville, 13 Kan. of Rights an order against a garnishee could not be enforced by his imprisonment, and that § 490 of the Civil Code, which provided that the court or judge may order the money to be applied towards satisfaction of the judgment, and "may enforce the same by proceedings for contempt in case of refusal or disobedience," probably did not mean that the court might imprison a garnishee for not paying money which he owed (a debt) into court, or to a judgment creditor, but even if they did so tent. mean the words were unconstitutional to that ex

where the action was on the case for false repreIn Stroheim v. Deimel, 73 Fed. Rep. 430, 436, sentations in obtaining goods on credit, the court held that although the general rule was, that constitutional provisions abolishing imprisonment for debt did not necessarily include or comprehend imprisonment on a judgment in an action ex delicto, yet in cases within the jurisdiction of the Federa} courts, § 990, U. S. Rev. Stat., which prohibits imtions and restrictions imposed by state statutes prisonment for debt, and declares that all modificashall apply, was to be construed as including under the term "imprisonment for debt" actions ex delicto in cases where the state statute was to be construed in favor of personal liberty, such a judg

or known, of any bank, banking firm, or corporation engaged in a banking business, or any other person or persons, engaged in said busi

ment debtor being in fact "imprisoned for debt"
within the fair scope of the words, the creditor's
right being in the nature of a property right, which
a statute or Constitution abolishing imprisonment
for debt in effect takes away from the creditor.
The above case of Stroheim v. Deimel was, how-
ever, appealed (77 Fed. Rep. 802), and it was con-
tended that the proposition in the opinion below,
that § 990, U. S. Rev. Stat., was applicable to judg-
ments for torts, was inconsistent with the opinion
of the court in Deimel v. Arnold, 34 U. S. App. 177,
69 Fed. Rep. 987, wherein it was said that imprison-
ment for debt, as used in this and like statutory
provisions, means debts arising out of contracts,
and does not extend to actions for tort, nor the
fines or penalties arising from a violation of the
penal laws of the state; but the court stated that
whether the circuit court was justified in treating
that part of the opinion as a dictum intended simply
as a reiteration of the rule that in a constitutional
provision abolishing imprisonment for debt the
word "debt" does not necessarily comprehend, and
should not be considered as comprehending, judg-
ments in tort, it did not deem it necessary at that
time to consider.

It was not the design of the Wisconsin Constitution to wholly abolish what was formerly known as a writ of ca. sa., but only to prohibit its use in a certain class of cases, the inhibition extending its use to imprisonment for debt, arising out of, or founded on, a contract, express or implied, thereby simply prohibiting what had been a remedy in the collection of debts so arising. Re Milburn, 59 Wis. 24, 31.

It has been stated that the language of the Wisconsin Constitution, taken in its broad and proper sense, indicated a right accruing, a sum of money or other thing due or deliverable by virtue of a contract express between the parties, or implied from their acts and circumstances, or on account of a breach of it in respect to some matter provided for or contemplated by them when it was made,-something springing out of the contract and for the enforcement of which resort must be had to it; and seems not to include damages for those wrongful acts which either party may possibly do, and which when done were remotely connected with it, but were not anticipated by them at the time of making it, the act in that case being precisely of that character. Ke Mowry, 12 Wis. 52.

See also The Blanche Page, 16 Blatchf. 1,8, infra,

VIII. c.

c. Breach of promise to marry.

|

ness, or the agent or agents thereof, who shall receive for deposit any bank notes, specie money, or other thing of value, knowing at

So where, in such an action, the defendant was arrested and held to bail, under chap. 17, § 149, N. C. Stat., which provided that the defendant might be arrested as hereinafter prescribed in the following cases, inter alia, on an action on a promise to marry, -the court held that such provision was a violation of the articles of the state Constitution, there being no fraud, a mere breach of promise to marry being no more a case of fraud than a breach of any other promise, and for that reason the prosecution could not be made to include a breach of promise to marry without extending it to a breach of any other contract, the words "except in cases of fraud” being used in a restricted sense, namely, as fraud in procuring a contract to be made, or fraud in attempting to evade performance. Moore v. Mullen, 77 N. C. 327.

The court distinguished the above case from the New Jersey cases infra, which upheld the defendant's arrest in actions of a similar character, upon the ground that in those actions the defendant, in addition to the breach of promise or contract, had been guilty of illegal acts, and had sought to abandon the plaintiff by fleeing from the state, there being additional circumstances which, in those cases, caused the court to consider the case as one of fraud and so within the provisions of the Constitution, while in the case in hand there was no fraud but a mere breach of contract.

A different opinion is, however, held by the court in cases where fraud exists.

In Re Sheahan, 25 Mich. 145, which was an application for a writ of habeas corpus, the petitioner being arrested on a capias in an action for a breach of promise to marry, the court held that whether in actions for breach of promise to marry in general the defendant was liable to arrest or not, yet a case like the one then before the court, which partook of the nature of fraud, seduction being proved, was within the exceptions contained in the provisions of the Constitution relating to imprisonment for debt.

So, where the defendant's contention was that a promise of marriage was a contract for a breach of which the defendant could not be arrested without proof of fraud, either in contracting the obligation, or in his subsequent action to avoid his responsibility, the court stated that if such were an action founded on a contract, it would be within the act respecting imprisonment for debt in cases of fraud, if it were not specially excepted in § 7 of that act, but that the provisions of that act did not extend to actions on promises to marry, the exemption not meaning that a writ of capias ad responIt has generally been contended that an action dendum should not be awarded in such cases, the for breach of a promise to marry is based upon con- classification of such cause of action in the 7th sectract, the action being for damages for the breach | tion with contempts, etc., showing that a harsher thereof, and therefore within the constitutional provisions prohibiting imprisonment for debt, and such would seem to be the conclusions arrived at by the courts, the defendant being exempt from punishment except in cases where fraud is shown. In Re Tyson, 32 Mich. 262, the applicant for a writ of habeas corpus and certiorari was arrested on a capias in a civil action issued upon an affidavit, charging him simply with a breach of promise to marry. He was held to bail, which was given, but he afterwards surrendered in exoneration of his bail and remained in custody under the writ of capias. It was held that the cause of action was based simply upon a breach of promise to marry, and in the absence of any charge involving fraud it was within the constitutional inhibition against imprisonment for debt contained in art. 6, § 33, of the state Constitution.

rule was intended than was applied in cases of breach of ordinary contracts, and that a wider scope was to be given to judiciary discretion in holding to bail in such cases, than that prescribed by the statute in mitigation of the rigor of the old law of imprisonment for debt, the New Jersey statute being an exposition of ¶ 7 of art. 1 of the state Constitution, the case being within the exception made in cases of fraud as contained in such constitutions, as fraud was proved against the defendant. Perry v. Orr, 35 N. J. L. 295.

And § 291, 2, of the Code of North Carolina, which provides that a defendant may be arrested for seduction, is valid and not in conflict with art. 2, § 16, of the state Constitution, though it provides that there shall be no imprisonment for debt, except in cases of fraud, and damages recovered in such a case not constituting a debt in the sense im

the time said deposit is received, or having good cause to believe, that such bank, banking firm, corporation, person, or persons are in a failing or insolvent condition, shall for each

plied by that provision. Kinney v. Laughenour, 97 N. C. 325, 327.

III. Actions founded in tort.

a. In general.

offense be deemed guilty of a misdemeanor, and on conviction thereof be fined not less than double the amount of said deposit.

"Sec. 2. Be it further enacted, that in all

So, Me. Stat. 1831, chap. 520, for the abolition of imprisonment of honest debtors for debt, passed in order to carry into effect the provisions of the state Constitution abolishing imprisonment for debt, does not apply to actions founded on tort, or to process on judgments for costs. Gooch v. Steph

As to distinctions between debts and torts, see enson, 15 Me. 129. also supra, II.

The constitutional inhibition as to imprisonment for debt does not apply to cases founded upon torts committed by the defendant, even though it may be contended that the judgment for damages recovered in such action constitutes a debt owing by the defendant to the plaintiff, the Constitution only prohibiting such imprisonment in actions arising ex contractu.

In cases where the ground or form of action is ex delicto, or in tort for damages for a wrong committed, the courts generally hold that the constitutional inhibition does not apply, and therefore a defendant is liable to be imprisoned, not, however, for the debt he owes, but for the wrong he has done, either to the plaintiff himself, or to the public at large. Kennedy v. People, 122 Ill. 649, 652; People, Brennan, v. Cotton, 14 Ill. 414, 415; McCool v. State, 23 Ind. 127, 131; Lower v. Wallick, 25 Ind. 68; Ex parte Bergman, 18 Nev. 331; Long v. McLean, 88 N. C. 3; Moore v. Green, 73 N. C. 394, 21 Am. Rep. 470; United States v. Walsh, Deady, 281, 285.

The provisions of the Alabama Constitution prohibiting imprisonment for debt apply only to actions based on contracts express or implied, and they do not extend to actions originating in tort. Ex parte Hardy, 68 Ala. 303, 316.

In that case it was stated that it 'was yet to be supposed that the framers of the Constitution intended to prohibit the legislature from authorizing the remedy of incarceration as a means to coerce the payment of damages originating ex delicto, but only of a debt originating ex contractu. Ibid.

The provision of the Illinois Constitution exempting debtors from imprisonment has no application to an action for a tort, as such provision applies only to actions of contract, express or implied. McKindley v. Rising, 28 Ill. 337, 343.

And in such a case the statute must receive its natural construction without the restraining influence of the Constitution, which has been applied to it in cases ex contractu. Ibid.

It has been held that chap. 52, Ill. Rev. Stat., relates to arrests for debts, and has no application to arrests for torts, its object being to carry out the policy of the Constitution that a man shall not be imprisoned on account of his debts if he acts honestly and fairly toward his creditors, and it is confined exclusively to arrests made in suits brought upon contracts, express or implied, such intention being further manifest by the provisions of Ill. act Feb. 28, 1845, which prescribes a different mode for the discharge of those held in custody in final process, in cases not provided for by chap. 52, Rev. Stat. People, Brennan, v. Cotton, 14 Ill. 414.

A Constitution which abolishes imprisonment for debt does not prohibit the legislature from passing a law to imprison on judgments founded on torts. Turner v. Wilson, 49 Ind. 581, 584.

And the Indiana courts have stated that the distinction between tort and contract exists in the nature of things, and cannot be confounded or abolished by law. One arises by agreement, the other by wrong, and none but honest debtors are protected from imprisonment for debt; the wrongdoers and dishonest men cannot claim the exemption. Ibid.

And in New York, where there does not seem to be any express constitutional inhibition, the act abolishing imprisonment for debt does not apply to suits founded in tort, though a contract between the parties is alleged by way of inducement. McDuffie v. Beddoe, 7 Hill, 578.

In Mallory v. Leach, 23 How. Pr. 507, 509, where the action was on contract, and subdiv. 1, § 179, N. Y. Rev. Stat., declared that no defendant could be arrested except in an action for the recovery of damages on a cause of action not arising out of contract, the court stated that inasmuch as it was a question of personal right as distinguished from the rights of property, the law must be strictly construed, and that in order to arrest under subdivision 1, the action must be in tort as distinguished from an action on contract, and that such was the plain meaning of the language employed. The action must be for the recovery of damages, a term inappropriate when applied to the principal recovery in an action for debt; but usual and appropriate when applied to actions in tort.

Where, by the laws of the state, the owner of personal property was entitled to the possession thereof, and any deprivation of such property was a tort, the object of such statute being the more effectually to quiet and protect the possession of personal property, and to prevent the taking possession thereof by fraud or violence, it was held that the defendant's imprisonment in proceedings thereunder could not in any legal sense be considered as an imprisonment for debt, within the provisions of the Georgia Constitution of 1868, which declared that there shall be no imprisonment for debt. Harris v. Bridges, 57 Ga. 407, 24 Am. Rep. 495.

And where the record showed that a wrong had been committed, and that the defendant had embezzled the property of the plaintiff, and the latter was entitled to the remedy in case of tort, but brought his suit in form ex contractu, it was held that he was still entitled to process on his judgment, in the same manner that he would be entitled in an action of tort, although the Illinois statutes provide that "no execution shall issue against the body of the defendant except when the judgment shall have been obtained for a tort committed by such defendant," the statute not saying that the plaintiff must necessarily pursue the form of an ex delicto action, in order to entitle him to an execution against the body of the defendant, if it appears on the record, and has been adjudged against him, that the real right of action was for a tort committed by the defendant. Barney v. Chapman, 21 Fed. Rep. 904.

Again, where a relator was under arrest on account of debt, and the judgment against him was founded upon a tort, it was held that the plaintiff had a right to sue out an execution against his body under § 90, chap. 59, Ill. Rev. Stat., and that he was not entitled to be discharged under chapter 52 of such Revised Statutes, but must proceed under the act of February, 1845. People, Brennan, v. Cotton, 14 Ill. 414.

Where the action was not brought to recover money loaned by the plaintiff to the defendant, but for the false and fraudulent representations of the defendant in respect to certain collateral securities,