Harris v. Cone

Morris, Justice.

Sub-division 4, of section 119, provides for holding the defendant to bail, in an action for the recovery cef a debt or obligation, when the defendant has been guilty of a fraud in contracting the debt, or in incurring the obligation. To enable the plaintiff to hold the body of the defendant, to satisfy the judgment obtained in such action, the plaintiff in his complaint must aver the fraud with which the defendant contracted the debt or incurred the obligation; and the judgment must find that the fraud was committed.

Section 288 of the Code, provides for cases where the defendant, in the first instance, has not been, arrested under sections 119 and 181; but where the fraud was alleged in the complaint, -and found by the judgment to have been committed.

In this case, as the alleged fraud has neither been'alleged in the complaint, or found to have been committed by the judgment, the defendant is entitled to his discharge.1 In truth, at least as regards the plaintiff, defendant has been kept -in prison from the rendition of the judgment, if not from the service of the complaint,- without authority of law.

The-spirit of our laws is non-imprisonment for debt, and imprisonment for fraud. Final imprisonment for fraud cannot be intended or tolerated, without the opportunity to test the truth of the alleged fraud before -a jury. The foregoing construction of sections 119,181 and 288 of the'Code, is harmonious— in keeping with the principles of non-imprisonment for debt;,' and imprisonment for fraud/ and with the constitutional right of every citizen to be tried by a jury.

Defendant discharged from imprisonment.