In re Aram , 1 Cal. Dist. Ct. 239 ( 1857 )

Botts, J.

Application for discharge under the "Act for relief of persons imprisoned by civil process.”

The defendant being sworn, unequivocally denies the possession of any property except a very small portion of that by law exempt from execution, notwithstanding this, Ms creditors contend that he has property, which he is concealing from the operation of legal process.

The statute is penal in its nature, and, as I understand it, the suspicion of concealment having been extinguished by the oath of the defendant, the onus of their allegation rests upon the creditors, and unless I am satisfied, beyond a reasonable doubt, that the defendant has property under his control, which he is concealing, he must be discharged. In determining the issue presented by this case, wHch is ■ simply the present ability of the defendant to pay the judgment under which he is confined, Ms former conduct is .wholly immaterial. No matter how criminal it may have been, his continued imprisonment is only intended as a means of coercing the surrender of his property.; when it ceases to answer "this end it becomes illegal. It ia long since the humanity of the law permitted the crime of debt to be punished by imprisonment. To the criminal laws, a citizen may be compelled to answer for the perpetration of a fraud.' Of that it is not our province to inquire. The defendant is imprisoned on civil process, and he- is here, not to answer to the community for the perpetration of crime, but to his creditors for the money he owes them.

He swears positively that he is without the means of payment. A ■great latitude has been allowed the creditors in their attempt to disprove his statement. They have sought to do it by tracing effects to his hands, and requiring him to account for their disbursement. This mode of proceeding to disprove the solemn oath of the defendant, is in its nature unsatisfactory, and becomes weaker and weaker as the period of acquisition .recedes from the period of investigation.

It is impossible that the court could tolerate an investigation for such purposes, of the acts of a lifetime, consequently some reasonable period must be fixed on as the limit of such an investigation. Accordingly, I go bfeek to April, 1856, when the defendant dissolved his partnership with Palmer, and began to trade on his own account.

Upon the dissolution of the partnership, he admits tqe possession of goods and debts.to the amount of about $7,000. He afterwards received goods, and borrowed money, together, from April, 1856, to January, 1857, amounting to about $16,500. This makes $23,000 received during- this period, to be accounted for; He swears to. a detailed account of disbursements during this time, amounting to about S10,000. This consists of payments for goods, family, expenses, freight, Use. He then sells out Ms stock on hand, together with his storehouse, gar $3,000, and this sum,,he states, he afterwards expended in paying debts due to his brother, and in lawyer’s fees. Let it be remembered that it is admitted that the defendant is an illiterate man, and kept very imperfect books, even of Ms mercantile transactions. This state-, mónt purports to be only an account of his disbursements, as near 88 he can remember .them.

It will appear then, that there is nothing unreasonable or contradictory m Ms statement; nothing in it, per se, to- invalidate Ms oath of -inability to discharge his liabilities. How as to.the evidence aliunde adduced by the creditors, viz s the depositions, of the two brothers of -the defendant, fflfd that of Ms former partner, Palmer, although iher® are some discrepancies, aa might bs expected, bofe between'feelr several statements, and those-of fee'defendant, in segará to ttmffi© terneactions, sarming otos, the-Space of twelve months, upon the whole, they telly remarkably well Whether fees® transactions feed up® fee cbfendmt the crime of ©bteMsg goods under, false pretenses, os -?»Intention to reduce bulky assets to money, and fly. the country. Is non fee question. I see nothing in them to satisfy me that the defendant has not, m he swears he has, divested himself, and been divested by operations óf law, of all his -available assets. If it shall 'hereafter appear that Ms statement is unirae, he will have to-answer to the laws of Ms country for the commission of pegury. If'he be found .with property, Ms creditors can still seize it on execution. Where there is so much to be risked, and so little to be gained, by falsehood, the defendant’s oath is entitled to great weight.

I see nothing in the case to .satisfy me that the defendant is hiding or concealing any of Ms effects from 'Ms creditors.

Let him be discharged.