Armis v. Barker, 4 Ga. 170

Armis v. Barker

4 Ga. 170 | Ga. | 1848

By the Court.

Warner., J.

delivering the opinion.

This was a question of fraud, suggested by a creditor against his debtor, under the Act of 1823 for the relief of honest debtors. On the trial of the issue in the Court below, the jury found a verdict in favor of the debtor. The counsel for the .creditor submitted the question to the Court as to his right to enter an appeal from the verdict of the jury, and the Court below ruled he was not entitled to an appeal. Then the counsel for the creditor moved the Court to grant a new trial in the cause, which motion the Court also overruled : whereupon the plaintiff in the Court below'excepted, and now assigns the same for error here.

[1.] The fourth section of the Act of 1823 provides, that before the debtor who may be arrested, shall be sworn to his schedule, if any creditor or creditors shall suggest any fraud, or concealment of any property, money or effects, it shall be the duty of the Court to direct an issue to be made up, and tried by a jury at the first term. Prince’s Dig. 292. The Act also provides for one continuance of the cause if either party is unprepared for trial; and if the jury shall find fraud or concealment, etc., then .such debtor shall be imprisoned, until a fair and full disclosure of all his property, money or effects, be made by him. To authorize an appeal, the plaintiff in error relies on the twenty-sixth section of the Judiciary Act of 1799, which proyides, that in case either party shall be dissatisfied with the verdict of the jury, then, and in all *174such cases, either party may, within four days after the adjournment of the Court, enter an appeal in the Clerk’s office of such Court, as matter of right. Prince, 426. The Constitution of this State declares, “ the person of a debtor, where there is not a strong presumption of fraud, shall not be detained in prison, after delivering bona fide all his estate, real and personal, for the use of his creditors, in such manner as shall he regulated by law.” 1th section, A.th article of the Constitution. Prince, 912. On the 5th of December, 1801, the Legislature passed an Act to carry into effect the seventh section of the fourth article of the Constitution. On the 13th of December, 1809, the Legislature passed an amen-datory Act on the same subject. Prince, 286,288. This last Act provides, that when the jury shall find there has been fraud on the part of the debtor, he shall be remanded to prison ; but if the jury shall find there has been no fraud, then the debtor shall be “forthwith discharged,” in the manner pointed out by the Act to carry into effect the seventh section of the fourth article of the Constitution. The Act of 1801 also provides, when the debtor shall have complied with the provisions of that Act, he shall be “forthwith discharged and set at liberty.” When we take into consideration the provision of the Constitution, and the several Acts of the Legislature which have been passed for the purpose of carrying that provision of the Constitution into effect, and construe the Act of , 1823 in connexion with the others, we are of the opinion that when the jury return their verdict in favor of the debtor, the presumption of fraud'll, rebutted, and he is entitled “forthwith to be discharged;” and that the creditor cannot longer detain him in custody by entering an appeal according to the provisions of the Judiciary Act of 1799. What would he the practical effect of such a course of proceeding ? The debtor is arrested and imprisoned until the first Court after his arrest, and then the creditor suggests fraud, and an issue is formed to try it, and the creditor continues the cause on the ground that he is not prepared for trial, as he may do once under the statute. At the next Term of the Court a trial is had, and the jury find in favor of the debtor; the creditor enters an appeal which postpones the case until the next Term of the Court, and then, under the rules of the Court, the creditor could continue the cause twice on the appeal, if not prepared for trial, to say nothing about providential cause. By this means, the debtor might be imprisoned for two years at the instance of *175the creditor, for no other fault than his poverty. Such a course of proceeding would, in our judgment, violate not only the reason and spirit of the Constitution, hut the clear import of its terms. It would be detaining the person of a debtor in prison, after the presumption of fraud had been rebutted by the verdict of a jury of his country. Such a practice, if allowed, would subject the person of a debtor to a most rigorous oppression, at the instance of a vindictive and malicious creditor, and it is no answer to say, the debtor may give security and keep out of the four Walls of the prison; for then he is in the friendly custody of his security, who may surrender him up at any moment, as was actually done in this case.

[2.] The motion for a new trial was, in our judgment, properly overruled by the Court below. Fraud is a question of fact, of which the jury were the proper judges, and there was evidence on b.oth sides, which it was the peculiar province of the jury to consider and determine. This case comes fully within the rule laid down by this Court in Peels vs. Land, (2 Iielly’s Reports, 16,) that the verdict will not be set aside, as contrary to .evidence, where there has been evidence on both sides, and no rule of law violated,nor manifest injustice done; although there may appear to have been a preponderance of evidence against the verdict.

Let the judgment of the Court below be affirmed.