1

the plaintiff for his debt. (a) In Scotland, the imprisonment on execution is avowedly to enforce payment and the discovery of funds; and it does not, like the English imprisonment, preclude an execution concurrently against the property. The Scottish law of imprisonment for debt is slow, cautious, and tolerant in its operation. (b) In this country, the progress of public opinion is rapidly tending to enlarge the remedies against property, and to abolish imprisonment for debt, except where the judgment is founded upon tort, misfeasance, or fraud. (c)

(a) Imprisonment on ca. sa. is no extinguishment of a lien of mortgage for the same debt. Davis v. Battine, 2 Russ. & My. 76. It was said by the court, in Sir William Herbert's case, (3 Co. 11,) that at common law, and prior to the statutes of Hen. III., Ed. I. and III., the body of the debtor was not liable to execution for debt, except in cases of injuries accompanied with force, and for the king's debts. Sir William Blackstone, vol. iii. p. 281, has followed that opinion, and Sir Francis Palgrave, who has examined with great research the Anglo-Saxon institutions, says that no arrest of the person was allowed at common law, except when justified by a breach of the peace, or a contempt of the king's authority. The Anglo-Saxon or Teutonic law gave a distringas on neglect to obey a summons, by which the defendant's goods and chattels were seized as pledges to compel his submission to the judgment of the court. Rise and Progress of the English Commonwealth, vol. i. 181. But this position appears from Bracton, and from the history of legal process as detailed by Mr. Reeves, to be unfounded, if we consider the common law as it existed as early as the reign of Henry III. Sir F. Palgrave refers to the Anglo-Saxon common law. Bracton, 440, 441. 2 Reeve's History English Law, 439, 440.

(b) 1 Bell's Com. 8. 2 Idem. 537.

(c) In New York, by the Act of April 26, 1831, ch. 300, and which went into operation on March 1st, 1832, arrest and imprisonment on civil process at law, and on execution in equity founded upon contract, were abolished. The provision under that Act was not to apply to any person who should have been a non-resident of the state for a month preceding; (and even this exception was abolished by the Act of April 25th, 1840;) nor to proceedings as for contempt to enforce civil remedies; nor to actions for fines and penalties; nor to suits founded in torts, 7 Hill (N. C.) 578; nor on promises to marry; nor for moneys collected by any public officer; nor for misconduct or neglect in office, or in any professional employment. The plaintiff, however, in any suit, or upon any judgment or decree, may apply to a judge for a warrant to arrest the defendant, upon affidavit stating a debt or demand due, to more than $50; and that the defendant is about to remove property out of the jurisdiction of the court, with intent to defraud his creditors; or that he has property or rights in action which he fraudulently conceals; or public or corporate stock, money, or evidences of debt, which he unjustly refuses to apply to the payment of the judgment or decree in favor of the plaintiff; or that he has assigned, or is about to assign or dispose of his property, with intent to defraud his creditors; or has fraudulently contracted the debt, or incurred the obliga

1 Under the N. Y. Code of Procedure, an execution against the person directs the officer to commit the debtor to the jail of the county, "until he shall pay the judgment or be discharged according to law."

*The assignment of the insolvent passes all his interest,399 legal and equitable, existing at the time of executing

tion respecting which the suit is brought. If the judge shall be satisfied, on due examination, of the truth of the charge, he is to commit the debtor to jail, unless he complies with certain prescribed conditions, or some one of them, and which are calculated for the security of the plaintiff's claim. Nor is any execution against the body to be issued on justices' judgments, except in cases essentially the same with those above stated. To be a resident of the state within the meaning of the Act of 1831, it was held that the person must have a fixed abode, and an intention to remain and settle, and not to be a transient visitor. Frost v. Brisbin, 19 Wendell, 11. But this decision ceases now to be of any application, inasmuch as the exception itself is repealed. By the New York Act of 1846, ch. 150, the defendant is liable for imprisonment as in actions for wrong, if he be sued and judgment pass against him in actions on contracts for moneys received by him, (and it applies to all male persons,) in a fiduciary character.2

The legislature of Massachusetts, in 1834 and 1842, essentially abolished arrest and imprisonment for debt, unless on proof that the debtor was about to abscond. As early as 1790, the constitution of Pennsylvania established, as a fundamental principle, that debtors should not be continued in prison after surrender of their estates in the mode to be prescribed by law, unless in cases of a strong presumption of fraud. In February, 1819, the legislature of that state exempted women from arrest and imprisonment for debt; and this provision as to women was afterwards applied in New York to all civil actions founded upon contract. (N. Y. Revised Statutes, vol. ii. pp. 249, 428.) A provision to that effect had been recommended to the legislature by the chancellor and judges, in January, 1819. Females were first exempted from imprisonment for debt in Louisiana and Mississippi; and imprisonment for debt, in all cases free from fraud, is now abolished in each of those states. The commissioners in Pennsylvania, in their Report on the Civil Code, in January, 1835, recommended that there be no arrest of the body of the debtor, on mesne process, without an affidavit of the debt, and that the defendant was a non-resident, or about to depart without leaving sufficient property, except in cases of force, fraud, or deceit, verified by affidavit. This suggestion was carried into effect by the Act of the legislature of Pennsylvania of July 12, 1842, entitled, "An Act to abolish imprisonment for debt, and to punish fraudulent debtors." In New Hampshire, imprisonment on mesne process and execution for debt existed under certain qualifications, until December 23, 1840, when it was abolished by statute, in cases of contract and debts accruing after the first of March, 1841. In Vermont, imprisonment for debt, on contracts made after first January, 1839, is abolished, as to resident citizens, unless there be evidence that they are about to abscond with their property; so, also, the exception in Mississippi applies to cases of torts, frauds, and meditated concealment, or fraudulent disposition of property. Laws of Mississippi, by Alden & Van Hoesen, 1839, pp. 511, 512, 915, 916. In Connecticut, imprisonment for debt on contract is abolished, except in the usually excepted cases of fraud, &c., by statute of June 10, 1842. In Indiana, (R. S. 1838,) prison bounds for debtors are declared to be co-extensive with the county. This is reducing imprisonment to the mere vox et præterea nil. In Alabama, by statute of 1st February, 1839, imprisonment for debt is abolished, except in cases of fraud.

2 The Non-imprisonment Acts do not extend to process by admiralty courts. Gardner v Isaacson, Southern District of New York, 8 N. Y. Legal Observer, March, 1850.

the assignment, in any estate, real or personal; but no 400* contingent interest passes, unless it shall become vested

*

In Tennessee, by statute of 1831, ch. 40, and of January, 1840, no ca. sa. can issue to imprison for debt, without an affidavit that the defendant is about to remove, or has removed his property beyond the jurisdiction of the court, or that he has fraudulently conveyed or concealed it. A similar law was passed in Ohio and in Michigan, in 1838 and 1839. The power of imprisonment for debt, in cases free from fraud, seems to be fast going into annihilation in this country, and it is considered as repugnant to humanity, policy, and justice. In addition to the states of Massachusetts, New Hampshire, Vermont, Connecticut, New York, New Jersey, Pennsylvania, Michigan, Ohio, Tennessee, Mississippi, Louisiana, and Alabama, already mentioned, imprisonment for debt is abolished in Delaware, Florida, Wisconsin, and Iowa, with the usual exception of all or most of the cases of contempts, fines, and penalties, promises to marry, moneys collected by public officers, misconduct in office, and frauds. By the new constitution of New Jersey, in 1844, imprisonment is abolished in actions for debt, or on any judgment upon contracts, unless in cases of fraud. But imprisonment for debt is still retained, under mitigated modifications, in Maine, Rhode Island, Maryland, Virginia, North and South Carolina, Georgia, Arkansas, Kentucky, Missouri, Illinois, Indiana, and the District of Columbia. See Kinne on Imprisonment for Debt, New York, 1842. Act of Congress, March 3, 1843, ch. 98. The constitution of Rhode Island of 1842, and which went into operation in May, 1843, declares that the person of a debtor, where there is not strong presumption of fraud, ought not to be continued in prison after he has delivered up his property for the benefit of his creditors. An Act of Congress of 14th January, 1841, abolished imprisonment for debt under process in the federal courts, in all cases in which, by the laws of the state in which the court is held, such imprisonment has been abolished. In 1838, an Act was passed by the British Parliament, 1 and 2 Vict. c. 110, abolishing imprisonment for debt on mesne process, except under special order, when the debtor is about to abscond, and requiring the remedies against property to be exhausted before it can be permitted on final process. The execution against the debtor's property reaches the whole profits of the real estate, instead of a moiety as before; and money or bank-notes, checks, bills of exchange, promissory notes, specialties and other securities for money, may be taken on fieri facias. So stocks, funds, or annuities, or any stock or shares in any public company, may be attached for the payment of the judgment creditor. The creditor has full power over all the debtor's property, and the latter is also liable, as before, to eventual imprisonment on execution.

But it is understood that the English commissioners, appointed to inquire into the laws affecting bankrupts and insolvents, have recently (1840) made an interesting report on the subject, in which they condemn as unjust and impolitic the existing law, holding the future acquired property of insolvent debtors, who are discharged, liable for their preëxisting debts; and they recommend that this distinction between the operation of bankrupt and insolvent laws be abolished; and also, that imprisonment for debt, on final process by ca. sa., except in special cases, be also abolished. In 1842, the cessio bonorum Act was introduced into the British Parliament, by Lord Brougham, abolishing virtually the practice of imprisonment for debt. In April, 1844, Lord Cottenham introduced a bill into the House of Lords for abolishing entirely imprisonment for debt

3 By the constitution of California, no person can be imprisoned for debt, in any civil action, on mesne or final process, unless in cases of fraud.

within three years after making the assignment, and then it passes. (a). This I apprehend to be the general effect of the assignment, in every state, and under the English law. Possibilities, coupled with an interest, are assignable, but not bare possibilities, such as the expectancy of an heir. (b) The assignment does not affect property held by the debtor in trust (c); nor does the assignment by the insolvent husband affect the property settled to the separate use of the wife, free and clear of her husband. (d) It has been repeatedly held, that the insolvent's discharge applied only to debts existing when the petition, inventory, and schedule of debts were presented, and not so as to cover debts contracted between that time and the time of the discharge. The distinction is founded on obvious principles of justice; for the computation of the amount of the debts and creditors is founded upon the inventory and schedule, accompanying the petition, and the assignment and discharge relate to them. (e) It is likewise the general policy of all insolvent * laws to distribute the property * 401 assigned ratably among all the creditors, subject, nevertheless, to existing legal liens, and priorities existing before the assignment; (a) and under the New York insolvent laws, a creditor

on mesne process and on execution, in cases free from fraud or violence; and that the discharge of insolvents, as well as bankrupts, should protect all after-acquired property. It was during the Samnite war that the Roman law was passed prohibiting personal slavery for debt, and confining the creditor's remedy to the property of the debtor; but the insolvent debtor, nevertheless, forfeited all his political rights. Dr. Arnold's Hist. of Rome, vol. ii. 277.

(a) N. Y. Revised Statutes, vol. ii. p. 21. The English bankrupt laws have a more extensive and strict operation upon the bankrupt's property; for the assignment, whenever made by the commissioner, operates by relation so far as to carry to the assignees all the property which the bankrupt had at the time of the commission of an act of bankruptcy. Vide supra, p. 390, n. The bankrupt is incapable of affecting his estate by any act of his, after an act of bankruptcy, though before the issuing of the commission. Smallcombe v. Bruges, 13 Price Exch. 136.

(b) Carlton v. Leighton, 3 Meriv., 667. Comegys v. Vasse, 1 Peters U. S. 193,

220.

(c) Kip v. Bank of New York, 10 Johns. 63. Dexter v. Stewart, 7 Johns. Ch. 52. Yates & M'Intire v. Curtis, 5 Mason, 80.

(d) Adamson & Armitage, Cooper's Eq. 283. Wagstaff v. Smith, 9 Vesey, 520. See Mr. Ingraham's View of the Insolvent Laws of Pennsylvania, 2d edit. 223–227.

(e) Ernst v. Sciaccaluga, Cowp. 527. Pease v. Folger, 14 Mass. 264. M'Neilly v. Richardson, 4 Cowen, 607. Ingraham on Insolvency, 168, 169.

(a) This is the case in most, and perhaps now in all, the states, though equality of distribution was understood not to exist some few years past in Maine, New Hampshire, and Vermont, and that the race of diligence among creditors was kept up.

cannot become a petitioning creditor in respect to any debt secured by a legal lien, unless he previously relinquishes that lien for the general benefit of the creditors. (b)

(3.) The case of absconding and absent debtors may be referred to this head of insolvency. The attachment law of New York, (like insolvent acts and the acts for the relief of debtors from imprisonment,) is a legal mode by which a title to property may be acquired by operation of law. (e) When the debtor, who is an inhabitant of New York, absconds, or is concealed, a creditor resident within or out of the state, to whom he owes one hundred dollars, or any two, to whom he owes one hundred and fifty dollars, or any three, to whom he owes two hundred dollars, may, on application to a judge or commissioner, and on due proof of the debt and of the departure or concealment, procure his real and personal estate to be attached; and on due public notice of the proceeding, if the debtor does not, within three months, return and satisfy the creditor, or appear and offer to contest the fact of having absconded, or offer to appear and contest the validity of the demand, and give the requisite security, then trustees are to be appointed, who become vested with the debtor's estate; and they are to collect and sell it, and settle controversies, and make dividends among all his creditors in the mode prescribed. From the time of the notice, all sales and assignments by the debtor are declared to be void. (d) If the debtor resides out of the state, and is indebted on a contract made within the state, or to a credi

tor residing within the state, although upon a contract made 402* elsewhere, his property is liable to be attached and sold

in like manner: but the trustees are not to be appointed until nine months after public notice of the proceeding. (a)1 Per

(b) N. Y. Revised Statutes, vol. ii. pp. 36, 46. Harth v. Gibbes, 4 M'Cord, 8. (c) N. Y. Revised Statutes, vol. ii. pp. 3-14. The provisions of the statute are minute and full of details, and a general outline only is given in the text. See, also, N. Y. Statute of May 8, 1845, ch. 153, amending the same.

(d) The Colony Act of New Brunswick transfers to the trustees all rights to action of the debtor existing at the time of their appointment. Ritchie v. Boyd, Kerr (N. B.)

264.

(a) The personal representatives of a deceased debtor are not liable to be proceeded

1 In case of an attachment against a non-resident debtor, all creditors, resident and nonresident, are entitled to a share of the assets, regard being had to any assignments under foreign laws, from which they may have derived any benefit. In re Coates and Hilliard, 18 Barb. (N. Y.) 452.