Sidebilder
PDF
ePub

A of

the District Court for Cobert County con koowing at the time that the bank was insolv. victing him of receiving, contrary to the pro-ent. Reversed.

And even under state statutes regulating pro-covery of any money due upon any judgment or ceedings against debtors, in order to render the decree founded on contract, or due upon any conproceedings taken thereunder constitutional, the tract express or implied, or for the recovery of any provisions of such acts must be substantially com- damages for the nonperformance of any contract, plied with in order to render the imprisonment of it was held that if its language was to be taken acthe debtor constitutional, for the reason that the cording to its ordinary acceptation and meaning, mere fact that the defendant is in debt does not it must be intended to prohibit arrest and impris. subject him to arrest, neither does the fact that he onment on civil process absolutely, in existing as suffers an execution to remain in the hands of the well as in future cases, the terms being clear and officers unsatisfied, when he is of sufficient ability explicit, although under the rule of construction to pay it, even though it may clearly be his duty to that no statute should be construed retrospecdo so, a mere neglect of duty not justifying the tively, unless the intention of the legislature to creditor in resorting to harsb measures. Maber v. give it such effect clearly appeared, it must be conHuette, 10 Ill. App. 56. Here $ 12 of the Illinois Billcluded that the legislature did not intend to make of Rights was construed along with 88 62 and 63 of the law apply to pre-existing cases. Bronson v. the Illinois Statutes of 1872, relating to judgments | Newberry, 2 Dougl. (Mich.) 38, 43. In that case, and decrees, which prescribed the manner in which however, the subsequent section excluded such a and the circumstances under which an execution construction, its language being too plain and posiagainst the body of the defendant for the causes tive to be misunderstood. named in the exceptions in the state Constitution So, the true spirit of the New Jersey Constitution might be mentioned.

would seem to be, that the honest debtor who was So, in view of the constitutional inhibition, it poor and had nothing to pay with should be exhas been uniformly beld that in order to justify a lempt from imprisonment at the mercy of his crediresort to arrest, all the provisions of the law relat- I tor. Ex parte Clark, 20 N. J. L. 648, 45 Am. Dec. ing thereto must be complied with. Huntington v. 394. Metzger, 51 Hl. App. 222, 224.

And the same is the spirit of the North Carolina Where the provisions of a state Constitution pro- Constitution, when the insolvency of the debtor is vided that "no person shall be imprisoned for debt, bona fide. State v. Manuel, 4 Dev. & B. L. 20, 34; except in case of fraud," it was held that its pro- Brown v. Walk, 8 Ired. L. 517, 520; Burton v. Dickvisions were so limited in their scope, so clear and ens, 3 Murpb. (N. C.) 103; Burgwyn v. Hall, 108 N. well defined, that their full force was easily under-C. 489. stood and applied without difficulty, whether they were considered as restrictions upon inherent, or

In Mims v. Lockett, 20 Ga. 474, 476, it is stated

that there are only three things for which a ca. sa. conditions of granted power, to the full extent of the provision being tangible and definable, reach- debtor may be imprisoned. If, when the court ing to a single ill, full effect being given to it with

comes to which his case is returnable, he has out difficulty. State, St. Joseph & D. C. R. Co., v. intention to take advantage of the insolvent debt

falied to give notice to his creditor regarding bis Nemaha County Comrs. 7 Kan. 555.

or's act, or refuses at that time to take the oath, or Such a constitutional provision practically pre- is convicted of fraud by the jury, the debtor may cludes imprisonment, except as a punishment for be committed; and in the first two cases the con-acts of a criminal or quasi-criminal character, and finement will terminate whenever he has complied leaves the unfortunate but honest debtor free with the requirements of the statute, and in the from any possibility of personal restraint. Doyle tried case notwithstanding the fraud the debtor v. Boyle, 19 Kan. 168, 172. Again, in Atchison Street R. Co. v. Missouri P. R. surrender of his effects; and it is erroneous to sup

cannot be kept in custody after he has made a full Co. 31 Kan. 660, 665, such declarations were said to be clear, precise, and definite limitations of the pose that when a debtor is incarcerated upon the power of the legislature, and of every officer and finding of a jury, be is deprived of his liberty until agency of the people, their meaning and extent the teeth of the Constitution; and in view of the

he discharges the debt. Such law would be in being clear, limiting the power of the legislature; state Constitution, to say nothing of the strong no act of that body being sustainable which con- tendency of the public mind to abolish entirely imflicts with them. So, it bas been stated that the provisions of a

prisonment for debt, the insolvent laws are en

titled to a liberal construction in favor of the state Constitution upon this question ought to

debtor. bave a common sense interpretation; that is, they ought to be understood in the sense in which they

In Messenger v. Lockwood, 9 West. L. J. 0. S. were construed by those adopting them, and that (Ohio) 521, the defendant was arrested upon a ca. sa. even though it was a well-recognized canon of con

in a suit brought for breach of contract, the cause struction that where legal terms were used in a assigned for the writ being that he was a nonresistatute they were to receive their technical mean

dent of the state, but he was discharged on com. ing unless the contrary clearly appears to have mon bail, the court stating that the incarceration been the intention of the legislature, that princi- of a man's body would not be tolerated simply beple does not apply to the organic law, which is to

cause he did not reside in the state, no fraud or be construed, according to the acceptation of crime being committed within the meaning of the those who adopted it, as the supreme rule of con

Constitution. duct botb for officials and individuals, the evident So, in Morrow & Hazzard v. Finch, 7 West. L. J. intention of such Constitution being to relieve 0. s. (Ohio) 144, it was held that nonresidence, or those who could not pay their debts, and not to want of citizenship of a debtor, was not sufficient shield from punishment persons who had violated to authorize the arrest of a citizen of another state; the public law. State v. Mace, 5 Md. 337, 350. and further, that to arrest a citizen of another state

Where the state Constitution provided that no under the Obio laws was a violation of art. 4, 82, of person should be arrested or imprisoned on any the Constitution of the United States, which procivil process issued out of any court of law, or on vides that the citizens of each state shall be entitled any execution issued out of any court of equity, to all the privileges and immunities of citizens of in any suit or proceeding instituted for the re-l the several states.

The facts are stated in the opinion.

McClellan, J., delivered the opinion of the Messrs. Asa E. Stratten, James Jack court: son, and Isaac Orme for appellant.

The defendant, Hinton E. Carr, is charged Mr. W. C. Fitts, Attorney General, for in one count as the president, and in another as the State.

a member, of a banking firm, with receiving

II. What are debts.

In this view of the matter, the clause in question

should be construed as if it read: "There shall be a. Meaning of the word "debt."

no imprisonment for debt arising upon contract In considering the question of the constitution. express or implied except, etc.'" ality of imprisonment for debt, the question arises And it has been stated that the word "debt" is of as to wbat are debts within the meaning of the con- large import, including not only debts of record, or stitutional provisions. There would, however, judgments, and debts of specialty, but also obligaseem to be very little conflict in the authorities, tions under simple contract to a very wide extent; which almost unanimously hold that the debt in- and in its popular sense includes all that is due to tended to be covered by the Constitution must be a man under any form of obligation or promise. a debt arising exclusively from actions ex contractu, Re Sutherland, 3 Nat. Bankr. Reg. 314, in whicb and was never meant to include damages arising in case the question arose whether a fine amounted actions ex delicto, or fines, penalties, and other im- to a debt. positions imposed by the courts in criminal pro- So, the legal acceptation of debt has been said to ceedings as punishments for crimes committed i be a sum of money due by certain and express against the common or state law.

agreement. Re Sutherland, supra, citing 3 Bl. Such inhibition, however, exists only where the Com. 154. contract is free from fraud, the Constitutions of Again, in Turner v. Wilson, 49 Ind. 581, 584, where nearly all the states excepting cases of fraud, and the contention was that a sum of money ordered making that a ground of imprisonment. Ala- to be paid by the father of an illegitimate child for bama would appear to be the only state which does its support was a debt within the meaning of g 22 not make the exception in cases of fraud. Ken- of art. 1 of the Indiana Constitution, the court nedy v. People, 122 III. 649, 652; People, Brennan, v. stated that a debt was a sum of money due by Cotton, 14 III. 414, 415; McCool v. State, 23 Ind. 127, agreement, which must be certain as to amount 131; Lower y.Wallick, 25 Ind. 68; Ex parte Bergman, and arise upon contract, and that under the sys18 Nev. 331; Long v. McLean, 88 N. C. 3; Moore v. tem of common-law pleading, at the time of tbe Green, 73 N. C. 394, 21 Am. Rep. 470; United States v. adoption of the Indiana Constitution, and before Walsh, Deady, 281, 285.

the distinction between forms of action was abol. Liabilities arising ex contractu are not punishable ished by the Code of that state, the word "debt" in by imprisonment in Pennsylvania in the absence law had no other meaning, and therefore it must of fraud. Hammer v. Ladner, 17 Phila. 315.

be supposed that the framers of the Constitution It has been held that imprisonment for debt bas so understood and used the word; and further, that been forbidden on process issuing from a court of the words of the Constitution could not be fairly the United States in any state where, by the local understood in any other sense, inasmuch as in the law, imprisonment for debt has been or shall be section abolishing imprisonment for debt, the abolished, and all modifications, conditions, and re- words “any debt or liability thereafter contracted" strictions upon such imprisonment provided by the are expressly used. law of any state are made applicable to Federal And the cases McCool v. State, 23 Ind. 127; Lower process, to be executed therein, under $ 990 of the v. Wallick, 25 Ind. 68; Ex parte Teague, 41 Ind. 278; Revised Statutes; but imprisonment for debt as State, Billman, v. Hamilton, 33 Ind. 502: Reynolds used in that and like statutory or constitutional pro- v. Lamount, 45 Ind. 308; and Ex parte Voltz, 37 Ind. visions means debts arising out of contract, and 237,-are to the same effect. does not extend to actions for tort, nor to fines or It must be a debt within the proper and legal penalties arising from a violation of the penal laws meaning of that term. McCool v. State, B Ind. of the state. Deimel v. Arnold, 34 U. S. App. 177, 127, 131. 185, 69 Fed. Rep. 987, 992; Lathrop y. Singer, 39 The term "debt" as used by the convention in Barb. 396; Kennedy v. People, and McCool v. State, framing the Maryland Constitution was meant to supra; Hanson v. Fowle, 1 Sawy. 497; Long v. Mc- be used in its popular sense, and was so understood Lean, supra; United States v. Walsh, 1 Abb. (U. S.) by the people, and was regarded as a protection to 66; Harris v. Bridges, 57 Ga. 407, 24 Am. Rep. 495, the unfortunate, and not as an immunity to the and Ex parte Bergman, supra.

criminal, the term "debt" being understood as an So, in Dixon v. State, 2 Tex. 481, it is said the obligation arising otherwise than from the sentence words "imprisonment for debt" have a well-de. of a court, or a breach of the public peace, or the fined and well-known meaning, and have never commission of a crime. State v. Mace, 5 Md.337, 350. been understood or beld to apply to criminal pro- The term "debt,” as employed in 8 15 of the Conceedings. It is not to be supposed, and it will stitution of North Dakota, is used in a broad sepse, scarcely be contended, that it ever entered into the and will embrace such obligations to pay money as minds of the framers of the Constitution that they arise upon the law, as well as those which arise were to be understood as having any application upon contract. Granbolm v. Sweigle, 3 N. D. 476. to the administration of the criminal laws, or that In Perry v. Orr, 35 N. J. L. 295, 298, it was stated they were to have the effect of preventing the pun- that the ist clause of 1 17 of art. 1 of N. J. Const. ishment of crimes.

1844, "no person shall be imprisoned for debt in any Again, in United States v. Walsh, Deady, 281, 285, action," was not confined to the technical meaning 1 Abb. (U. S.) 71, it is stated: “The word 'debt' is of debt, but included debt in the popular sense of of very general use, and has many shades of mean- a demand founded on contract, express or iming. Looking to the origin and progress of the plied, and comprised all actions ex contractu, the change in public opinion, which finally led to the purpose of the legislature being to abolish im. 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 20 sections of the Statute of 1842, leaving it to the Constitution was intended to prevent the useless legislature to define what should constitute fraud, and often cruel imprisonment of persons who, and therefore the statute, after the Constitution having honestly become indebted to another, are was established, stood in harmony with its proviunable to pay as they undertook and promised to. sions, 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. 8 16, art. 1, "no per- use. People, Singer Mfg.Co., V. McAllister, 19 Mich. son shall be imprisoned for debt arising out of or 215. founded on contract, express or implied," clearly Again, where the claim against an agent was a implies that there may be debts “not founded upon debt, and the action was a civil one, and the process contract." Smith v. Omaps, 17 Wis. 395, 397. wherewith the defendant was arrested was a mesne

And the 39th section of the North Carolina Con process, and there was nothing whatever to show stitution bas been held to have no application to any fraud, or suspicion of fraud, on defendant's debts due the state. State r. Manuel, 4 Dev. & B. part, or a demand or refusal of payment, the court L. 20, 26.

held that $ 15 of art. 1 of the California Constitution There would not, however, scem to be any au- prohibiting arrest and imprisonment for debt apthority holding that the constitutional inhibition plied, and that 87 of the California practice act of has any greater import, or includes other debts 1850, upon which the plaintiff relied, should be conthan those above specified.

strued so as not to conflict with the Constitution, This would seem to be so, for the reason that in and that if such construction were not possible the construing the meaning of the word "debt," the statute must yield to the Constitution. Re Holdcourt in the case of United States v. Walsh, 1 forth, 1 Cal. 438. Abb. (U. 8.) 71, Deady, 281, 285, stated that a person And where the case made out, in an action comwho wilfully injures another in person, property, menced by capias, was that the defendant had color character is liable therefor in damages, and in lected moneys as superintendent of a company and some sense he may be called the debtor of the had not accounted for the same upon demand, it was party injured, and the sum due for the injury held that the defendant's arrest and imprisonment might be considered a debt to such a party, but he was illegal, being in conflict with the Michigan is in fact a wrongdoer and trespasser, and does not laws, the debt arising upon contract, it not being a come within the reason of the rule exempting an loan, an 'action for which was allowed to be so honest man from imprisonment, because he is pe- commenced. Re Stephenson, 32 Mich. 60. cuniarily unable to pay that which he has prom- And, imprisonment for debt having been abol. ised.

ished by the Constitution of Georgia, an attachThe construction given to the word "debt" by ment for contempt is not a remedy for obliging the the court in the case of United States v. Walsb, payment of a mere debt from executors under a supra, was commented upon and adopted by the will to a legatee, adjudged upon citation to account court in Norman v. Manciette, 1 Sawy. 484, and by the ordinary under 8 2598 of the Code of that also in Hanson v. Fowle, Id. 497, 505.

state. Wood v. Wood, 84 Ga. 102. And the word "debt" when used in a statute Again, a sum lost in gaming does not come within without some plain or explicit declaration making 8549 of the New York Code, as being an injury to it applicable thereto does not include taxes nor property including the wrongful taking, detention, claims for unliquidated damages. The legal defi- or conversion of personal property, for the reason nition of the word is opposed to unliquidated dam- that the same is a debt and recoverable in an action ages, or a liability in the sense of an inchoate or for money had and received, and therefore an arcontingent debt, or an obligation not enforceable rest made in an action to recover the same is illegal, by ordinary process. Bolden V. Jensen, 69 Fed. and the order therefore will be set aside. TompRep. 745.

kins v. Smith, 62 How. Pr. 499. In this case, bow

ever, there were no constitutional provisions to be b. In general.

construed, the question turning upon the right to In Ruddell v. Childress, 31 Ark. 511, proceedings imprison the defendant under the provisions of the were taken by a surety against his principal under Code. $ 5694 of Gantt's Digest, which provides that a surety In Ex parte Prader, 6 Cal. 239, where the petimay maintain an action against his principal to ob- tioner was arrested on final process to answer a tain indemnity against the debt or liability for judgment obtained against him in an action for aswhich he is bound before it is due, whenever any sault and battery, the court held that assault and of the grounds exist upon which, by the provisions battery was not a case of fraud, in the sense that of chapters 8 and 9, an order may be made for ar- the term was employed by the Constitution, and rest and bail or for attachment; and it was held that could not be made so by the legislature, and theresuch proceedings were pot contrary to the pro- fore the judgment was a debt as much as though visions contained in $ 14, art. 1, of the Constitution recovered in an action of assumpsit. The defendof that state of 1868, which probibits imprisonment ant was therefore discharged from arrest. for debt, but provides that the general assembly Under the provisions of the Illinois Constitution may provide for imprisonment or holding to bail probibiting imprisonment for debt, any liability to persons charged with fraud in contracting said pay money growing out of contract, express or imdebt, the court stating that such a case was not the plied, constitutes a debt within the meaning of arrest of a debtor for debt, but was a proceeding such constitutional provisions; and therefore beto indemnify the surety in the manner pointed out fore a party can be held to bail on a capias ad reby the section.

spondendum, it must appear by affidavit that he An amount due upon an open account was held has been guilty of fraud, or that there is a strong to be a debt within the meaning of art. 1, § 15, of presumption that he is guilty, and the affidavit the California Constitution, Re Vinich, 86 Cal. 70. must show both the constitutional and statutory

So, the Michigan 'Constitution having abolished grounds before issuing the writ. Parker v. Follensimprisonment for debt, except in certain cases bee, 45 Ill. 473, 478. therein set forth, an alleged balance between a In Vermont the Constitution probibits imprisonprincipal and agent for which an action of debt is ment for debt in cases where the debtor has delivbrought does not come within the exceptions to the ered up his property for the benefit of his creditors Michigan laws passed to carry out such constitu- in the manner provided by law, and it has been held tional provisions, even though there may be an al- that the provision of the Vermont statute of Janlegation of a refusal to account, and of a fraudu- uary, 1839, that no person who is a resident citizen lent conversion of the same by the agent to his own l of the state shall be arrested upon an execution is

Failing or Insolvent Condition," approved De-| “Sec. 1. Be it enacted by the general assemcember 12, 1892, which is in the following bly of Alabama, that any president, cashier, or words:

other officer, by whatever title he may be called

sued upon a judgment recovered in an action for debt except in cases where the debtor has not founded upon contract, express or implied, was delivered up his property for the benefit of his meant to embrace all kinds of contracts, whether creditors as prescribed by law. by record, specialty, or parol. Therefore a judg- Where defendant, an agent, was sued in trover. ment is a contract within the meaning of 8 63 of required to find bail, and in default was committed chapter 28 of the Vermont Revised Statutes, and to jail, and the plaintiff elected to take an alternaan execution obtained in an action of debt upon a tive verdict for money, to be discharged on the dejudgment rendered after January, 1838, cannot be fendant's delivering the package, and the defendissued against the body of the debtor. Sawyer v. ant sought to be discharged upon the ground that Vilas, 19 Vt. 43.

he was imprisoned for debt contrary to the terms And in that state on all judgments rendered on of the Constitution, the court held that the verdict contracts accruing before the 1st day of January, authorized a judgment for money, which, when en. 1839, the creditor was entitled to an execution tered, became a judgment for money, or the highagainst the body of the debtor with some excep- est form of debt known to the law, and therefore tions, but on judgment rendered on contracts, ex- the defendant's imprisonment for such debt was press or implied, made or entered into after that contrary to the provisions of the state Constitution, date, no writ or execution could issue against the although, had the verdict been for the delivery of body of the debtor if he was a citizen of Vermont. the package alone, it would have been against the The statute which took away the remedy against property, and not for debt, and therefore would the body of the debtor in the latter contracts made not have been within the constitutional provisions. no provision for a case wbere the judgment was Southern Exp. Co. v. Lynch, 65 Ga. 240. rendered on different contracts, some of which were In Meyer v. Berlandi, 39 Minn. 436, 1 L. R. A. 777, before and some after that date. But the courts of 83 of chap. 170 of the Minnesota General Laws of that state were of opinion that if a party volunta- 1887, known as the mechanic's lien law, which made rily embraced in any one declaration several acts the mere failure of a contractor, who had received on different contracts and several on which he his pay from the owner, to pay his laborors and would have been entitled to a capias, and on the materialmen, although he might not be guilty of others would not have been so entitled, he could any fraud, a felony punishable by imprisonment in not on such judgment bave an entire execution the penitentiary, was held unconstitutional, as against the body of the debtor, and the same prin. fairly repugnant to & 12 of art. 1 of the state Conciples would apply to a recovery in an action on a stitution prohibiting imprisonment for debt, isasbook account where part of the demand was since much as it was a return to the old barbarous fiction the passing of the statute abolishing imprisonment. upon which imprisonment for debt was originally Witt v. Marsh, 14 Vt. 303, 305.

based, namely, that a man who owed a debt, and Where, in a judgment on the report of an auditor, did not pay it, was a trespasser against the peace the court granted a certified execution as to so and dignity of the Crown, and for this suppositimuch of the judgment as was for money held in a tious crime was liable to arrest and imprisonment. fiduciary capacity, and the writ issued as an attach- So, the act of bail indorsing his name on the writ ment, and the defendant took exception under the has been held, in proceedings by way of audita Vermont Statute, & 1726, which provides that no querela, to be a contract between the bail and the person who is a resident of the United States shall creditor, and as such witbin & 63, chap. 28, of the be arrested or imprisoned on mesne process, issuing Revised Statutes of Vermont, and therefore the on a contract express or implied, nor on an execu- execution against the body of such bail, in protion issued on a judgment recovered in an action ceedings by way of scire facias, was illegally issued; founded on such contract, except as hereinafter and that the plaintiff (the debtor) was entitled to provided, -it was held that as part of the judgment his writ. Stoughton v. Barrett, 20 Vt. 385. was not for a fiduciary debt, it was for a liability And in Atchison Bd. of Edu. v. Scoville, 13 Kan. incurred when the defendant contracted to guar- 17, 33, it was held that under & 16 of the Kansas Bill antee certain sales, and therefore a judgment of Rights an order against a garnishee could not founded in part upon the defendant's contract of be enforced by his imprisonment, and that 8 490 of guaranty could not be enforced against his body, the Civil Code, which provided that the court or nor could an execution on such a judgment law-judge may order the money to be applied towards. fully issue against the body, the section of the stat- satisfaction of the judgment, and "may enforce ute in question expressly prohibiting the arrest the same by proceedings for contempt in case of upon a judgment founded in contract, and the refusal or disobedience,” probably did not mean statute nowhere provided for the arrest and im- that the court might imprison a garnishee for not prisonment of a debtor on an execution issued on paying money which he owed (a debt) into court, such a judgment as was recovered in that action, or to a judgment creditor, but even if they did so Williams C. Fertilizer Co. v. Rudd, 68 Vt. 607. mean the words were unconstitutional to that ex

In Hosack v. Rogers, 11 Paige, 603, it was held tent. that since the passing of the New York act abolish- In Stroheim v. Deimel, 73 Fed. Rep. 430, 436, ing imprisonment for debt, a final decree against where the action was on the case for false reprean executor for the payment of a debt due by the sentations in obtaining goods on credit, the court testator can only be enforced by execution against held that although the general rule was, that conthe individual property of the executor, where he stitutional provisions abolishing imprisonment for has wasted the funds which came into his hands, debt did not necessarily include or comprehend imthe decree being made in a suit instituted for the prisonment on a judgment in an action ex delicto, recovery of money due upon a contract, and yet in cases within the jurisdiction of the Federaj merely directing the payment of money in satisfac- courts, & 990, U. S. Rev. Stat., which probibits imtion of the amount due.

prisonment for debt, and declares that all modificaWhere the action was brought on a warranty, tions and restrictions imposed by state statutes but the narr, was in assumpsit, alleging fraud in shall apply, was to be construed as including under the warranty,the court held that a ca. sa. would not the term "imprisonment for debt" actions er delie. Fleming v. Maguire, 14 W. N. C. 210. The licto in cases where the state statute was to be conPennsylvania Constitution abolishes imprisonment strued in favor of personal liberty, such a judgor known, of any bank, banking firm, or corness, or the agent or agents thereof, who shal) poration engaged in a banking business, or any receive for deposit any bank notes, specie other person or persons, engaged in said busi. money, or other thing of value, knowing at

ment debtor being in fact “imprisoned for debt" So where, in such an action, the defendant was arwithin the fair scope of the words, the creditor's rested and held to bail, under cbap. 17, $ 149, N. C. right being in the nature of a property right, which Stat., which provided that the defendant might be a statute or Constitution abolishing imprisonment arrested as hereinafter prescribed in the following for debt in effect takes away from the creditor. cases, inter alia, on an action on a promise to marry,

The above case of Stroheim v. Deimel was, how- -the court held that such provision was a violation ever, appealed (77 Fed. Rep. 802), and it was con- of the articles of the state Constitution, there being tended that the proposition in the opinion below, no fraud, a mere breach of promise to marry being that $ 990, U. S. Rev. Stat., was applicable to judg- no more a case of fraud than a breach of any other ments for torts, was inconsistent with the opinion promise, and for that reason the prosecution could of the court in Deimel v. Arnold, 34 U. S. App. 177, not be made to include a breach of promise to 69 Fed. Rep. 987, wherein it was said that imprison- marry without extending it to a breach of any ment for debt, as used in this and like statutory other contract, the words "except in cases of fraud" provisions, means debts arising out of contracts, being used in a restricted sense, namely, as fraud in and does not extend to actions for tort, nor the procuring a contract to be made, or fraud in atfines or penalties arising from a violation of the tempting to evade performance. Moore v. Mullen, penal laws of the state; but the court stated that 77 N. C. 327. whether the circuit court was justified in treating The court distinguished the above case from the that part of the opinion as a dictum intended simply New Jersey cases infra, which upheld the defendas a reiteration of the rule that in a constitutional ant's arrest in actions of a similar character, upon provision abolishing imprisonment for debt the the ground that in those actions the defendant, in word "debt" does not necessarily comprehend, and addition to the breach of promise or contract, had should not be considered as comprehending, judg- been guilty of illegal acts, and had sought to abanments in tort, it did not deem it necessary at that don the plaintiff by fleeing from the state, there time to consider.

being additional circumstances which, in those It was not the design of the Wisconsin Constitu- cases, caused the court to consider the case as one tion to wholly abolish what was formerly known as of fraud and so within the provisions of the Cona writ of ca. sa., but only to prohibit its use in a stitution, while in the case in hand there was no certain class of cases, the inhibition extending its fraud but a mere breach of contract. use to imprisonment for debt, arising out of, or

A different opinion is, however, held by the court founded on, a contract, express or implied, thereby in cases where fraud exists. simply prohibiting what had been a remedy in the

In Re Sheahan, 25 Mich. 145, which was an applicollection of debts so arising. Re Milburn, 59 Wis. cation for a writ of habeas corpus, the petitioner 24, 31.

being arrested on a capias in an action for a breach It has been stated that the language of the Wis- of promise to marry, the court held that whether consin Constitution, taken in its broad and proper in actions for breach of promise to marry in gensense, indicated a right accruing, a sum of money or eral the defendant was liable to arrest or not, yet a other thing due or deliverable by virtue of a con

case like the one then before the court, which partract express between the parties, or implied from took of the nature of fraud, seduction being proved, their acts and circumstances, or on account of a

was within the exceptions contained in the probreach of it in respect to some matter provided for visions of the Constitution relating to imprisonor contemplated by them when it was made,--some- ment for debt. thing springing out of the contract and for the en

So, where the defendant's contention was that a forcement of which resort must be had to it; and promise of marriage was a contract for a breach of seems not to include damages for those wrongful wbich the defendant could not be arrested without acts which either party may possibly do, and which proof of fraud, either in contracting the obligawhen done were remotely connected with it, but tion, or in bis subsequent action to avoid his re. were not anticipated by them at the time of mak- sponsibility, the court stated that if such were an ing it, the act in that case being precisely of that action founded on a contract, it would be witbin character. Ke Mowry, 12 Wis. 52.

the act respecting imprisonment for debt in cases See also The Blanche Page, 16 Blatchf. 1,8, infra, of fraud, if it were not specially excepted in $ 7 of VIII. c.

that act, but that the provisions of that act did not

extend to actions on promises to marry, the exempc. Breach of promise to marry.

tion not meaning that a writ of capias ad responIt bas 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 rule was intended than was applied in cases of provisions probibiting imprisonment for debt, and breach of ordinary contracts, and that a wider such would seem to be the conclusions arrived at scope was to be given to judiciary discretion in by the courts, the defendant being exempt from holding to bail in such cases, than that prescribed punishment except in cases where fraud is shown. by the statute in mitigation of the rigor of the old

In Re Tyson, 32 Mich. 262, the applicant for a writ law of imprisonment for debt, the New Jersey of babeas corpus and certiorari was arrested on a statute being an exposition of 1 7 of art. 1 of the capias in a civil action issued upon an affidavit, state Constitution, the case being within the excharging him simply with a breach of promise to ception made in cases of fraud as contained in marry. He was held to bail, which was given, but such constitutions, as fraud was proved against the he afterwards surrendered in exoneration of his defendant. Perry v. Orr, 35 N. J. L. 295. bail and remained in custody under the writ of And $ 291, 1 2, of the Code of North Carolina, capias. It was held that the cause of action was which provides that a defendant may be arrested based simply upon a breach of promise to marry, for seduction, is valid and not in conflict with art. 2, and in the absence of any charge involving fraud it $ 16, of the state Constitution, though it provides was within the constitutional inhibition against im- that there shall be no imprisonment for debt, exprisonment for debt contained in art. 6, 8 33, of the cept in cases of fraud, and damages recovered in state Constitution.

such a case not constituting a debt in the sense im

« ForrigeFortsett »