convictions under this act, the fine shall be paid in lawful money of the United States only, one half of which shall go to the person who made the deposit.

upon the faith of which the loan was made, it was held that the action was in form ex delicto and not ex contractu, and that therefore the defendant was not entitled to a discharge from imprisonment by virtue of the Pennsylvania act of 1842 abolishing imprisonment for debt, the gravamen being in form and in fact deceit. Tryon v. Hassinger, Clark (Pa.) 184.

In Messenger v. Lockwood, 9 West. L. J. O. S. (Ohio) 521, it was stated that the provision in the Ohio Constitution prohibiting imprisonment for debt was an explicit declaration that the people had reserved to themselves the sacred boon of per. sonal liberty, and had denied to the government all control over their persons except for the commission of crimes, and the isolated case of fraud in their business transactions, such declaration being regarded as an ample safeguard without either legislative or judicial construction admitting of no such thing by either the one or the other department of the government.

In an action in case in the nature of a conspiracy, it was held that the action was for a tort, and not for a mere breach of contract, and therefore the court committed no error in committing the defendant on a ca. sa. Kalbfus v. Rundell, 134 Pa. 102.

In Jack v. Shoemaker, 3 Binn. 280, a capias was allowed in slander, the court stating that such a writ might issue for any cause of action whatever against a freeholder who neglected to put in special bail upon notice so to do.

So in the case of a judgment for damages and costs recovered in an action of replevin in the circuit court, imprisonment on an execution does not fall within the prohibition, either of article 6, § 33, of the Michigan Constitution, or of the nonimprisonment act of 1839 (2 Comp. Laws, chap. 166), of that state. Fuller v. Bowker, 11 Mich. 204, 209.

The Constitution of Wisconsin abolished imprisonment for debt, arising on contract, and superseded the territorial statute so far as it related to actions ex contractu, but so far as it related to actions ex delicto such statute would appear to remain in force until the Revision of 1849, when such revision continued the practice in actions of tort, and the same practice of arrest on mesne process, or at any time before judgment in actions of tort upon order of the judge of the court, is still continued by law, and therefore, under the Constitution, the judges of courts of record have power at chambers to make an order to hold to bail in proper cases, and the arrest of the prisoner for the tort with which he is charged upon the order of the judge of the county court in which he was sued for tort is therefore legal, and such order warrants his imprisonment, unless its force has been arrested or spent. Re Kindling, 39 Wis. 35, 60.

In Re Mowry, 12 Wis. 52, the applicant for mandamus sought to be discharged from imprisonment under an execution rendered against his body, upon a judgment in an action for damages for the wrongful and fraudulent misapplication and conversion of school-land certificates deposited as security, his contention being that such execution would not lie, as the judgment was a debt arising out of a contract and therefore within the inhibition imposed by § 16, art. 1, of the state Constitution, and the court held that he was not entitled to the privilege from arrest therein contained.

b. Mesne profits.

Where a judgment in ejectment had been obtained, and an action of trespass for mesne profits

"Sec. 3. Be it further enacted that the payment back to the depositor of the bank notes, specie money, or other thing of value deposited, before the conviction hereunder, and the

was afterwards brought upon the judgment, and a ca. sa. issued against the defendant, who applied for a writ of habeas corpus, alleging that his detention was unlawful, the court remanded the relator or petitioner upon the ground that he was not exempt from imprisonment within the meaning of the Pennsylvania act of 1842, prohibiting imprisonment for debt, the action not being in con. tract. Com. v. Bowman, 3 Pa. Dist. R. 74.

A claim for mesne profits in an action of ejectment is not founded “upon any contract, or due upon any contract, express or implied," and the recovery is not for "any damages for the nonperformance of any contract," and therefore the defendant is subject to arrest under the exceptions contained in the Pennsylvania act of 1842 abolishing imprisonment, the action being founded upon the wrongful holding, the recovery of mesne profits arising from such wrong or trespass. Hopkinson v. Cooper, 8 Phila. 8.

In Howland v. Needham, 10 Wis. 496, the question was whether an execution could issue against the body of a defendant upon a judgment for damages for the withholding of real property, and the rents and profits, where, pursuant to § 83 of the Code of Procedure, the claim for such damages was united with the claim in an action for the recovery of such property, and the court held that such an execution was legal and not within the provisions of Wis. Const. art. 1, § 16, inasmuch as an action of ejectment was an action ex delicto, and that the wrongful receipt by the tenant in possession of the mesne profits, or the withholding of the possession from the lawful owner, was a tort for which by the common law an action of trespass might be maintained. See also Lang v. Finch, 166 Pa. 255, infra, VI. a.

c. Trespass.

In a case where a verdict was rendered in an action of trespass for damages for negligence on the part of an employer in not furnishing his employees with reasonably safe appliances for work, wherein a ca. sa. was issued upon a judgment, and it was contended that the same was illegal by reason of the Pennsylvania act of 1842, abolishing imprisonment for debt, it was held that the case did not come within the exceptions contained in the provisions of the statute, the court reversing the order of the court below setting aside the ca. sa. Romberger v. Henry, 167 Pa. 314.

Where the action was clearly ex delicto, although the statement commenced by reciting a contract, which was mere matter of inducement to show how the defendant became possessed of the property on which he afterwards committed the trespass, and such recital was wholly unnecessary, and the defendant contended that the judgment was founded upon contract, or represented judgments for nonperformance of the contract, and hence came within the provisions of the Pennsylvania act of 1842 abolishing imprisonment for debt, and exempting him from arrest and imprisonment, the court held that such was not the case, as it was the result of the trespass pure and simple, outside of the contract, and therefore a capias ad satisfaciendum would lie to enforce the judgment. Dungan v. Read, 167 Pa. 393.

And the arrest upon a ca. sa. issued pursuant to a judgment in an action brought before a justice of the peace, for trespass upon personal property upon which an execution had been issued and returned "no property found," was held not an arrest on account of a debt, the judgment being founded upon a tort which gave the plaintiff a right to sue

court costs thereof, which may have accumu- question of the constitutionality of the foregolated, shall be a good and lawful defense to ing statute, and reserved the court's ruling, any prosecution under this act." Acts 1892- sustaining the indictment and statute, for our 93, pp. 94, 95. consideration.

By demurrer to the indictment and motion in arrest of judgment, defendant raised the

1. The statute, it is insisted for the appellant, is violative of article 1, § 21, of the Con

out an execution against the body. People, Bren- | did away with imprisonment for debt, even in cases nan, v. Cotton, 14 Ill. 414, 415.

d. Fraud.

As a general rule fraud is excepted by most of the state Constitutions, and therefore a debtor who has been guilty thereof cannot plead the unconstitutionality of his imprisonment as a means of securing his release from arrest.

of fraud, even though fraud was excepted out of
the earlier Constitutions, and therefore no excep-
fraud. Ex parte Hardy, 68 Ala. 303.
tion can be made in that state on the ground of

Arkansas.

There does not seem to be any direct inhibition against imprisonment for debt in the Arkansas Fraud is treated both by the legislature and the Constitution of 1836, but it has been held that the convention as in its nature criminal, and it is for effect of the Arkansas act of February 3, 1843, abolthis reason that arrests for this cause are tolerated, ishing imprisonment in civil cases, was not to enbut it will not be allowed that without a specifica-large the instances in which a capias or ca. sa. might tion of the facts and proof of them citizens should be placed beyond the protection of the Bill of Rights, and have their bodies incarcerated, simply because some frightened or hard creditor may believe that they intend to commit a fraud. Messenger v. Lockwood, 9 West. L. J. O. S. (Ohio) 521.

issue, but to make all the statutes then in force authorizing arrest and imprisonment for debt inoperative, except in cases of fraud on the part of the debtor, alleged by the plaintiff and sustained by the affidavits prescribed by the act. Hatheway v. Jones, 20 Ark. 109, 111.

By the Constitution of that state of the year 1868. however, imprisonment for debt was abolished ex

Persons may be imprisoned for a wrong by them maliciouly done, a tort wilfully and with malice committed, where, on account of such tort, dam-cept in cases of fraud. ages have been recovered by the party injured. Sawyer v. Nelson, 44 Ill. App. 184, 185.

Alabama seems to be the only state in which fraud is not made an exception, and wherein imprisonment for debt is entirely abolished.

Every intendment must, however, be in favor of the liberty of the subject, and the liberty of the subject is not to be presumed away by the theory that the district courts have jurisdiction over the subject of fraud, nor is it to be presumed when its process issues that it has been issued in a proper case, for if such a rule of presumption were adopted there would not be a single case in which a party might not be arrested and imprisoned on final process, although fraud never entered into the elements of the original suit or controversy. Matoon v. Eder, 6 Cal. 57, 60.

In Ruddell v. Childress, 31 Ark. 511, proceedings were taken by a surety against his principal under 8 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.

In construing the provisions of the Constitution of California the court stated that fraud is a fact which must be proved, and the party undertook to do so when he issued out his process; it gave char-§ acter to his judgment and determined his rights, and he should substantiate it. Ibid.

So, as a writ of arrest is only an intermediate remedy or process to secure the presence of a party until final judgment, the facts on which it is based must be affirmatively found, and the fraud stated in the judgment, in order to authorize an arrest on final process, and where this is not done no ca. sa. can properly issue against a judgment debtor. Ibid. And this is so for the reason that the writ issues in the language of the statute in the "enforcement" of the "judgment." Davis v. Robinson, 10 Cal. 411, 412.

Where the case raised a strong presumption of fraud on the part of the debtor, in that he had conveyed large amounts of real and personal property to persons for the purpose of cheatingland defrauding his creditors, it was held to be a sufficient case to justify his imprisonment under the Illinois Constitution. Re Salisbury, 16 Ill. 350, 352.

And it has been stated that fraud in contracting a debt in the ordinary nature of things means some fraudulent conduct at the time of the contract whereby the other party was deceived. Van Kirk

v. Staats, 24 N. J. L. 121, wherein it was sought to

imprison a debtor for debt, the plaintiff alleging

fraud.

By the Constitution of that state of 1874, art. 2. 16, imprisonment for debt is abolished except in cases of fraud.

California.

As the Constitution of the state of California does not prohibit, but by implication authorizes, imprisonment for fraud, execution may be ordered against the person of the defendant who is adjudged guilty of fraud, as where the defendant has fraudulently purchased goods. Stewart v. Levy, 36 Cal. 159, 167.

And in Re Vinich, 86 Cal. 70, where an order of arrest was issued in a civil action by a justice of the peace, and it was conceded that the action was for the recovery of moneys claimed to be due upon an open account, it was held that, under art. 1, § 15, of the California Constitution, which prohibits imprisonment in any civil action, on mesne or final process, unless in case of fraud, before the defendant could be subjected to such imprisonment fraud must be shown to exist.

Connecticut.

The Connecticut Constitution, art. 1, § 10, provides: "No person shall be arrested, detained or punished except in cases clearly warranted by law."

The statutes of that state abolishing imprisonment in all actions for debt arising upon contract express or implied, except in cases of fraud and fraudulent dealings as therein specified, have defined the cases wherein such imprisonment is warThe Alabama Constitutions of 1868, 1875, entirely ranted, and therefore, in cases falling within the

Alabama.

stitution of the state, which provides "that no ception of "cases of fraud;" and, on the same person shall be imprisoned for debt." It is to line, is essentially different from the Constitube observed in the outset that this provision of tions of this state of 1819, 1861, and 1865, in the organic law is essentially different from each of which the language is that "the person the provisions on this subject in many other of a debtor, where there is not strong prestate Constitutions, in that it contains no ex-sumption of fraud, shall not be detained in

exceptions named therein, imprisonment is justifi- | prisoners committed on execution. Frisbie v. Fowable, and not in violation of the Constitution. ler, 3 Conn. 87, 89.

It has been stated in construing the Connecticut statute relating to this subject that the gist of all actions is either ex contractu or ex delicto, that is, they sound either in tort or contract, and the statute is not intended to abolish the distinction; and that under the statute the mere inability to pay debts is no longer to be treated as deserving of imprisonment, such remedy for the collection of debts being too harsh, the legislature in very positive language abolishing it by the introductory clause of the statute, but all other causes of action enumerated under the proviso were left to be enforced as before, and remedies by action on the case for fraud were provided for even beyond former limits, so that all tortfeasors and fraudulent debtors should be discouraged and checked by danger of imprisonment. Armstrong v. Ayres, 19 Conn. 540,

545.

Georgia.

In the case of Harris v. Bridges, 57 Ga. 407, 24 Am. Rep. 495, the court stated that "if one man obtains the possession of the personal property of another by fraud or violence, or having possession of it, and there is reason to apprehend that it will be eloigned or moved away, or will not be forthcoming to answer the judgment that may be made in the case, there would seem to be no good reason why he should not be proceeded against, and be required to comply with the terms of the statute made and provided for such cases; and if the defendant should be imprisoned in accordance with the terms of the statute, on his failure to comply therewith,he cannot be said to have been imprisoned for debt," within the meaning of the provisions of the Georgia Constitution.

Illinois.

In discussing § 2, chap. 14, Ill. Rev. Stat. relating to the procedure therein established for holding the defendant to bail, the court stated that it was immaterial what the legislature might have said, as they could prescribe no rule for imprisonment for debt, except in conformity with § 15, art. 13, Ill. Const.; they might prescribe a mode by which the debtor should surrender his estate for the bene

Where in an action on the case it was alleged that the defendant, indebted upon certain notes, had fraudulently conveyed away and concealed his property so as to avoid legal process, and had made false and fraudulent representations in obtaining the goods on credit and in giving the notes therefor, it was held that such action was in tort for the fraud committed, and within the proviso to the Connecticut statute of 1842 abolishing imprison-fit of his creditors, and for his failure to do so they ment for debt, under which the defendant might might provide for his imprisonment; or they might be lawfully arrested and held to bail. Ibid. provide for his imprisonment in case of strong preAnd this is so for the reason that it was not in-sumption of fraud; and the court construed such tended to abolish such imprisonment in respect to that dishonest class of debtors who were guilty of fraud in contracting their debts, or who concealed or conveyed away their property so that it could not be reached by the ordinary process of attachment. Cowles v. Day, 30 Conn. 406, 412.

The creditor is entitled to the benefit of the remedy in an action on the case, in which both the debt and the fraudulent act or acts, which, by the statute were to deprive the fraudulent debtor of the benefit of the act abolishing, imprisonmen for debt, were to be set forth and proved, in order to secure the benefit of an execution against the body as well as the property of the debtor, the fraud irrespective of the debt not being an injury to anyone pecuniarily; but accompanied by the debt it is an injury, since it deprives the party of the means of obtaining payment by an attachment of the property secreted or removed. The object of the Connecticut Statute of 1854 was to continue the remedy provided by the act of 1842 against fraudulent debtors. Ibid.

And it has been held that the statute regulating the levy and executions and warrants was made pursuant to a fundamental principle of the law, that personal liberty should not be unnecessarily restrained, but if a debtor, for whose benefit the rule exists, neglects to offer property or refuses to turn out when demanded, declaring that the proceedings are illegal, he waives the privilege the law gives him, and the officer is excusable if he levies on the body. Allen v. Gleason, 4 Day, 376, 382.

act in connection with, and under the influence of the Constitution, and understood them as meaning that the affidavit must show, by facts stated and circumstances detailed, what the Constitution requires. It must either be construed so as to harmonize with the Constitution or else be held to violate it. Re Smith, 16 Ill. 347, 349.

So the courts of that state have further held that the provisions of the Illinois Constitution are to be regarded as having effectually abolished imprisonment for debt, as practiced under the common law; and therefore where a debt is the basis of the action, in order to justify imprisonment the foundation must be laid under one or both of the exceptions contained in § 12 of art. 2 of the state Constitution, namely, a refusal to deliver up his estate for the benefit of creditors, or fraud either in contracting or evading payment of the debt, such provisions extending to a writ of ne exeat. Malcolm v. Andrews, 68 Ill. 100, 104.

So, the limited imprisonment permitted under the Illinois statutes in actions ex contractu, where a tort is not the basis of the action, is not for or on account of the debt, but because of the fraud committed in fraudulently withholding and concealing property so that the same cannot be applied to the discharge of the indebtedness. Sawyer v. Nelson, 44 Ill. App. 184, 185.

And the requirements of the statute and Constitution must be fully complied with before defendant can be imprisoned for debt. Gorton v. Frizzell, 20 Ill. 291, 296. To the same effect Tuttle v. Wilson, 24 Ill. 553.

And in this connection it is the undoubted object of the law, in prevention of fraud, to render the The imprisonment of the debtor under the Illiimprisonment of such debtors as are able available nois Constitution is for his wrongful act in ento the collection of their debts; the Connecticut deavoring to evade payment, and therefore, if in statute giving authority to the court, at their dis- that state there is no imprisonment for debt, the cretion, on notifying the parties concerned, and on | rigid rules of the common law cannot be applied; due inquiry, to order the close confinement of and therefore if such imprisonment is abolished,

and it can only be had in cases of fraud or wrong- | where there is strong presumption of fraud. ful refusal to surrender his property for his cred-Huntington v. Metzger, 158 Ill. 272. itor's benefit, it follows that the effect and consequences of imprisonment for debt at common law must fail. Strode v. Broadwell, 36 Ill. 419, 422; Burnap v. Marsh, 13 Ill. 535.

or not. So that the statute we are considering can derive no aid from the idea that the receipt of a deposit by a banker under the circumstances stated is a fraud, and hence that the transaction would constitute "a case of fraud," since even in such cases there can be no imprisonment for debt.

by a competent tribunal the correctness of that finding could not be reviewed in another court or by any judge, upon habeas corpus, but the imprisonment must be in a manner and under circumstances which came within the meaning of the provisions of the Constitution.

The case of Eikenberry v. Edwards, 67 Iowa, 619, 56 Am. Rep. 360, was one wherein proceedings were taken under § 3145 of the Iowa Code, which provides that a party disobeying the order of the court judge, or referee, duly served, is punishable as for contempt. It was there held that the imprisonment of the defendant for noncompliance with the order of the court was not unconstitutional, but was a proceeding in aid of execution, the court distinguishing the case from that of Ex parte Grace, supra, upon the ground that in the case then before the court such court had full jurisdiction.

In this case, however, there are two dissenting opinions which hold that the statute in question was unconstitutional, and that the case was governed by the prior decisions in that state in Boyd v. Ellis, 11 Iowa, 98; Ex parte Grace, supra; Stewart v. Polk County Supers. 30 Iowa, 9; State v. Start, 7 Iowa, 502, 74 Am. Dec. 278.

Kansas.

In Howe Mach. Co. v. Lincoln, 24.Kan. 123, it was stated that fraud alone under the Constitution of that state justified arrest for debt. In that case the defendant had been imprisoned for fraud in obtaining a mortgage given for the purpose of covering his defalcations as the agent of the plaintiff. The court set aside an order liberating him on a motion for his discharge, holding that there was a clear case of fraud within the provisions of the Constitution, and this opinion was affirmed upon appeal in

25 Kan. 312.

2. The "imprisonment for debt" which the framers of constitutions embodying this provision doubtless had most prominently in mind was imprisonment upon process issuing in civil actions the object and sole purpose of which were the collection of debts. It was to remove the evils incident to the system of taking the

In Re Heath, 40 Kan. 333, 337, it was urged that a district judge, at chambers or in vacation, had no power to issue an execution against the person of a judgment debtor, but the court stated that the Kansas statute expressly conferred that power, and there was nothing in the Constitution forbidding the exercise thereof where fraud existed.

So, fraud must be proved before a court having jurisdiction to pass upon the question; consequently, before one in that state can be imprisoned for fraud, there must have been a judicial finding upon due process of law. Re Roberts, supra.

Louisiana.

And although there does not seem to be any express declaration against such imprisonment, yet under the Louisiana laws it has been held that as a general rule debtors cannot be imprisoned for debt, and the Louisiana act of 1855, authorizing their arrest under certain circumstances, must be regarded as an exception to the rule, and viewed in that light it must be construed strictly, and it therefore devolves upon the creditor who seeks such harsh remedy to make out his case and show that the party arrested is clearly one of those contemplated by the act. Levi v. Levy, 20 La. Ann. 552, 553.

Where a debtor had been imprisoned for debt and confessed judgment in favor of the plaintiff, it was held that, notwithstanding such confession, he was not entitled to have the term of imprisonment for such debt put an end to, where the facts showed that it was his intention to depart permanently from the state without leaving property sufficient to satisfy his creditor's demand, such an act being a fraud on the defendant's part. State, Williamson, v. Fourth City Ct. Judge, 37 La. Ann. 385, Follow

ing Anderson v. Brinkley, 1 La. Ann. 126; State, Wung Chung, v. Orleans Parish Civil Sheriff, 31 La. Ann. 799.

Massachusetts.

The 12th article of the Declaration of the Massa

The case of Tennent v. Weymouth, 25 Kan. 21, was one wherein the defendants had assigned and disposed of their property, or a part thereof, with intent to defraud their creditors, but as the facts chusetts Bill of Rights declares, inter alia, no submerely showed that the defendants sold and dis-ject shall be arrested, imprisoned, despoiled, or deposed of their entire stock of goods for a certain prived of his property, immunities, or privileges, sum, receiving in payment a certain amount in cash put out of the protection of the law, exiled, or deand two farms; and that the title deeds were exe-prived of his life, liberty, or estate, but by a judgcuted to their wives; and that the defendants comment of his peers or the law of the land. menced business with their cash capital; and that at the time of the sale they owed a certain specified amount,-the court stated that such facts did not prove fraud without which no arrest for debt could be had under the Kansas Constitution; fraud never being presumed but always proved, the law neither favoring nor encouraging arrest and imprisonment, such a remedy being the dernier ressort, the end of the law, quasi criminal. The proof of fraud must be clear and strong. To the same effect are Gillett v. Thiebold, 9 Kan. 427; Hauss v. Kohlar, 25 Kan. 640.

In that state the person of the debtor is now only taken in case of fraud. Randolph v. Simon, 29 Kan. 406, 410.

And such fraud must be established and proved; it will not be presumed. Re Roberts, 4 Kan. App.

292.

So, if the facts show fraud in the contracting of the obligation, the court will deny the motion for the discharge of the debtor,-especially if he shows no reasonable grounds for the disposition of his property. Heath v. Brown, 40 Kan. 33.

By Mass. Stat. 1855, chap. 444, which took effect on the 4th of July of that year, imprisonment for debt was abolished, except in certain cases of fraud. Dooley v. Cotton, 3 Gray, 496.

In Frost's Case, 127 Mass. 550, 554, it was said that by the common law a creditor had the absolute right to arrest his debtor upon an execution for debt, but that this right was restricted by the Massachusetts statutes, which permitted an arrest on execution only where the creditor made affidavit, and proved to the satisfaction of the magistrate that he believed, and had reason to believe, that one of the six charges named in the statute was true. The affidavit and proof before the magistrate, for the purpose merely of obtaining the authority to arrest upon execution, were not proceedings in a criminal case, but were merely proceedings in the course of a civil suit for the collection of a debt to which the 12th article of the Declaration of Rights had no application, and therefore if a creditor made the affidavit as provided by the statute, and obtained a certificate of the magistrate duly annexed to the execution, he had complied with the require