Fonda v. Beach ( 1852 )

Preston, J.

The articles 212 and 214 of the Code of Practice, authorizing the arrest of debtors, was amended by the Act of 1840, “to abolish imprisonment for debt.” The 2d section of the Act authorizes the creditor to have his debtor arrested, on making oath that he believes him about to depart, permanently, from the State, without leaving in it sufficient property to satisfy his demand.

' The supplemental Act of 1840, required the debtor, on his arrest, to give security not to depart the State for the term of three months. The 3d section of the first Act of 1840 made the condition of the bond to be, that the surety should pay the debt if the execution against the principal was returned unsatisfied.

The object of the arrest, still allowed by our laws, notwithstanding the abolition of imprisonment for debt, was to" prevent the permanent departure of the debtor from the State, without satisfying the debt, or making a surrender of his property to his creditors.

The oath required has no reference to a temporary absence of the debtor, nor was the arrest designed to prevent his temporary, but permanent departure. If the debtor is unable to give security, he may be imprisoned three months, and must then be discharged; but upon condition of surrendering his property, if required by the creditor, setting forth in a petition to the court, that the debtor had property which might be made available to his creditors.

If the debtor be released on giving bail, the same condition is, by implication, attached to his bond, that he cannot be discharged from liability, under the bond, until the lapse of three months after his arrest, and then, only, on condition that he surrender his property to his creditors, if required. The object of the imprisonment, and of the bond consequent upon the oath, and the arrest, being the same, the conditions of both must be the same. Both were intended to prevent a permanent departure, by the debtor, without making a surrender of his property, if required; both are satisfied if he does so. And both these means of effecting the same object, cease, under the law, at the end of three months, if the creditor does not require, within that time, the surrender of the debtor’s property.

The district court very properly refused, in this case, to make an order, as to the debtor, rescinding the arrest, because it had become inoperative by the lapse of the three months. In like manner he should have released the surety, because the three months had elapsed without the permanent departure of the debtor, during which time the creditor might, but had not required the surrender of his property. The surety had prevented a permanent departure of the debtor, during the term allowed to the creditor to require a surrender of property. That property remained subject to his execution, but the person of the debtor was no longer subject to the control of the creditor, under the law abolishing imprisonment for debt.

I do not concur in the reasons given by the district judge for his judgment, that the debtor had no intention to depart permanently when arrested ; but upon the principles stated, I think his judgment should be affirmed, with costs.

SiiiDEnii, J.

This case involves the construction of the Act of 28th March, ]840, and the supplementary act of the same year. The first Act is entitled “ An Act to abolish imprisonment for debt,” p. 131, a title which seems by no means to harmonize with the body of the statute.

The interpretation of much of this statute is involved in serious difficulty, and I confess myself embarrassed in attempting to apply it to this particular case. As the surety’s liability under the statute, and the proceedings and evidence in this cause does not seem to me clear, I prefer to leave the judgment of the district court undisturbed.