2 Doug. 38 | Mich. | 1845
delivered the opinion of the Court.
It is very clear that the defendant is entitled to have an exoneretur entered upon his recognizance, if the act abolishing imprisonment for debt, (S. L. 1839, p. 76,) operated to prohibit the imprisonment of Camp, his principal, upon any process issued upon the judgment against him. 9 Pet. 358, and cases there cited.
1. But it is contended on the part of the plaintiff, that the defendant’s recognizance of bail having been acknowledged and entered into prior to the passage of the act, is not affected by it; the act containing no express words declaring it retrospective in its operation, and the general rule being that no statute shall be construed to apply retrospectively, unless the intention of the legislature to give it such effect clearly appears.
We recognize the rule of construction contended for by the plaintiff’s counsel, but it is an equally well established principle, that, in the exposition of statutes, every part is to be considered, and the intention of the legislature to be
The first section of the act under consideration provides, “That no person shall be arrested or imprisoned on any civil process, issuing out of any court of law, or on any execution issuing out of any court of equity, in any suit or proceeding instituted for the recovery of any money due upon any judgment or decree, founded upon contract, or due upon any contract, express or implied, or for the recovery of any damages for the non-performance of any contract.”
If the language of this section be taken according to its ordinary acceptation and meaning, it must be intended to prohibit arrest or imprisonment on civil process, absolutely, in existing, as well as in' future cases. The terms are clear and explicit, that no person shall be arrested, &c. Still, under the application of the rule insisted on by the defendant’s counsel, and which we have assumed to be the correct one, we might well conclude that the legislature did not intend to make the law apply to pre-existing cases. Subsequent sections, however, we think necessarily exclude such a conclusion. The third and fourth sections, and those following, to and including the sixteenth, contain provisions for the arrest, imprisonment and discharge of debtors charged with fraud, in the disposition or concealment of their property, or in contracting their debts, &c. and who could not be arrested or imprisoned'by the preceding provisions of the act.
The seventeenth section is as follows: — “Every person imprisoned on civil process, at the time of this act taking effect as a law, in any case where by the preceding provisions of this act, such person shall not be arrested or imprisoned may, at any time after the taking effect of this act, give the plaintiff, his agent or attorney, ten days’ notice of the existence of this act, which notice the jailor
This section, in language too plain and positive to be misunderstood, applies the act to cases in which there is not only a pre-existing debt, but in which a judgment has been obtained, final process issued, and the debtor actually arrested and imprisoned. Can it be supposed that the legislature intended to bring within the operation of this statute, this class of cases, and exclude from its application those in which an indebtedness had only been contracted, or an obligation incurred? We think such a supposition not warrantable under the most stringent rule of interpretation that has been contended for.
But again. The last section strongly fortifies us in the view we have taken of the act. It is thus : — “The provisions of this act shall not extend to residents of a foreign power, who have contracted debts with residents of this state before this act takes effect, until the expiration of one year after the taking effect of this act.” The obvious mean
2. It is insisted, however, that if the act is construed to apply to this case, it impairs a right which the plaintiff had acquired prior to its enactment, and is therefore quoad hoc, in conflict with the provision of the constitution of the United States, which declares that “no state shall pass any law impairing the obligation of contracts.”
It is contended by the plaintiff’s counsel, that the cases of Bronson v. Kinzie, 1 How. R. 211, and McCracken v. Hayward, 2 How. R. 608, are directly in point, and settle, conclusively, the doctrine they maintain. It should be recollected, however, that the precise question now under discussion, did not arise in either of those cases. The first was an adjudication upon the constitutionality of the appraisal laws of Illinois, as applicable to existing mortgage contracts. The second, McCracken v. Hayward, applied the principles laid down in Bronson v. Kinzie, to sales upon execution.
It is admitted that the language of the court, in both cases, is sufficiently broad and comprehensive to embrace the point now in controversy. Judge Baldwin, in delivering the opinion of the court in McCracken v. Hayward, laid down this proposition: — “ Where the contract becomes consummated, the law defines the duty and the right; compels one party to perform the thing contracted for, and gives the other a right to enforce the performance, by the remedies then in force” Again, he remarks — “ If any subsequent law affect to diminish the duty, or to impair the right, it necessarily bears on the obligation of the contract, in favor of one party, to the injury of the
Now, had the question then before the court been, whether a state could abolish imprisonment for debt, upon subsisting contracts, without impairing the right of the creditor; and not, as it was, solely as to the validity of the Illinois appraisal laws, the decision unquestionably must have determined the rights of the present parties. Such, too, must be the effect of that decision, if it be found that the remedy by imprisonment entered into and formed a part of the contract between Bronson and Camp. The plaintiff’s counsel contend that it did. Can the position be maintained, either upon principle or authority? If it be true that this remedy was incorporated into the contract, and constituted an essential part of it, it must necessarily go with it, and might be applied for its enforcement, wherever the party might be found. A doctrine leading to such a result, it seems to me, is untenable. Justice Story, in treating of this subject, remarks, that, “Although there is a distinction between the obligation of a contract and a remedy upon it; yet, if there are certain remedies existing at the time when it is made, all of which are afterwards wholly extinguished by new laws, so that there remains no means of enforcing its obligation, and no redress; such an abolition of all remedies, operating in presentí, is an impairing of the obligation of such contract.” “But,” he continues, “every change and modification of the remedy does not involve such a consequence.” “No one will doubt that the legislature may vary the nature and extent of remedies, so always that some substantial remedy be in fact left.” “And a state legislature may discharge a party from imprisonment, upon a judgment, in a civil case of contract, without infringing the constitu
Sturges v. Crowninshield, (4 Wheat. 122,) a leading case on this and kindred subjects, is strongly in point. Chief Justice Marshall, in deciding the case, held this language: “ To punish honest insolvency by imprisonment for life, and to make this a constitutional principle, would be an excess of inhumanity which will not readily be imputed to the illustrious patriots who framed our constitution, nor to the people who adopted it. The distinction between the obligation of a contract, and the remedy given by the legislature to enforce that obligation, has been taken at the bar, and exists in the nature of things. Without impairing the obligation of the contract, the remedy may certainly be modified, as the wisdom of the nation shall direct.” “Confinement of the debtor may be a punishment for not performing his contract, or may be allowed as a means of inducing him to perform it. But the state may refuse to inflict this punishment, or may withhold this means, and leave the contract in full force. Imprisonment is no part of the contract, and simply to release the prisoner, does not impair its obligation.”
The case of Mason v. Haile, (12 Wheat. 370,) is to the same effect. “Can it be doubted,” said Judge Thompson, “but the legislatures of the states, so far as relates to their own process, have a right to abolish imprisonment for debt altogether, and that such law might extend to present, as well as future imprisonment? We are not aware that such a power in the states has ever been questioned. This is a measure which must be regulated by the views of policy and expediency entertained by the state legislature. Such laws act merely upon the remedy, and that in part only. They do not take away the entire remedy,
The doctrine of both these cases is reaffirmed in Beers v. Haughton, 9 Pet. 359. The question involved in the case now before us, constituted the turning point in that case. “There is no doubt,” observed Judge Story, in delivering the opinion of the court, “ that the legislature of Ohio possessed full constitutional authority to pass laws whereby insolvent debtors should be released, or protected from arrest, or imprisonment of their persons, on any action for any debt or demand due by them. The right to imprison constitutes no part of the contract, and a discharge of the person of the party from imprisonment, does not impair the obligation of the contract, but leaves it in full force against his property and effects.”
Neither of these cases were commented upon, or even referred to, by the majority of the court, or by the counsel, in Bronson v. Kinzie, or McCracken v. Hayward. They are not, therefore, overruled or modified by those cases, nor can we perceive that there is any conflict between them, if it be admitted that the remedy by imprisonment, where it exists, is not one of the elements of a contract. Judge McLean, in delivering a dissenting opinion in Bronson v. Kinzie, says inquiringly: — “ Does any one doubt that a state legislature may abolish imprisonment for debt, as well on pastas future contracts ?” “Hez’e,” he continues, “ is a modification of the remedy, which takes away a means, and often a principal means, of enforcing payment of the debt; and yet, this is admitted by all to be a constitutional law.”
Swift’s Dig. vol. 1, p. 14, is cited in behalf of the plaintiff, and, it is insisted, fully sustains his position. The case of Sturges v. Crowninshield, is there referred to and commented upon, as follows : — “ There is some question respecting the correctness of all the principles above laid
It will be readily admitted, that the opinions of Judge Sioift are entitled to the most respectful consideration,emanating as they did, from one of the most able jurists of his time in this country. But, applying the principles laid down by him, to the non-imprisonment act of this state, will it be found obnoxious to the charge of unconstitutionality ? I apprehend not; for it contains pro-
We may add, in concluding the discussion of this point, that most of the states of this union, have abolished imprisonment for debt, as well upon contracts existing at the time, as upon future ones; and we are not aware that such legislation has ever been adjudged an infringement of the constitutional provision in question.
3. But it is contended further, that the recovery against Camp, being for misconduct and neglect in a professional employment, is, by the second section of the act, expressly excepted from its operation.
That section is as follows: — “ The preceding section shall not extend to proceedings as for contempt to enforce civil remedies, nor to actions for fines and penalties, or on promises to marry, or for moneys collected by any public officer, or for any misconduct or neglect in office, or in any professional employment.”
The facts on which the plaintiff relies to bring this case within the exceptions of the act, are stated in his affidavit as follows : — “ And this deponent further says, that the said action on which the said recovery was had in favor of this deponent, against the said John G. Camp, was for misconduct and neglect in a professional employment; that this deponent, under the provisions of an act of the congress of the United States, for the relief of this deponent, approved on the 14th day of July, 1832, a copy of which is hereto annexed, employed the said John G. Camp, for a pecuniary compensation, as the attorney of this deponent, and gave him the requisite authority for that purpose, to procure and present to the treasury department of the United States, the requisite evidence to establish this deponent’s claim, mentioned in said act, and procure the adjustment and allowance thereof, and obtain
By the act of congress referred to, the proper auditing officers of the treasury department were authorized to adjust the claim of John Bronson, for a house and store destroyed by the enemy in the village of Buffalo, during the late war, and pay to him, &c.
With a view to meet the allegations in the plaintiff’s affidavit, the defendant’s counsel, on the argument of the motion in the circuit court, offered to read several affidavits to show that Camp was not, and never had been, by profession, an attorney or counsellor at law; the reading of which was objected to on the ground that they had not been filed, and copies served, agreeably to the 24th rule of the circuit court. Admitting the objection to have been well taken, it might have been obviated by an application to the circuit court, for leave to file the affidavits as of the time when the motion was made; or, the defendant might have withdrawn his motion, and, on a renewal of it, filed and served his affidavits in conformity to the rule. We incline, therefore, to treat the affidavits as properly before usr that we may form and certify to the circuit court
But, it is here urged by the plaintiff that, inasmuch as Camp assumed to act as an attorney, the defendant is estopped from denying that he acted in that capacity; and we are referred to 2 Stark. Ev. 18, and Lipscombe v. Holmes, 2 Camp. 441, in support of the position.
There is no allegation in the plaintiff’s affidavit, that Camp held himself out to the plaintiff as an attorney by profession, or that he in fact was such. Nor does it appear from the affidavit, that the business about which he was employed, was of such a character that it could be performed only by an attorney at law. It is apparent, on the contrary, that it could have been properly done by any man of common intelligence, possessing an ordinary knowledge of business. The plaintiff does not aver that he reposed confidence in Camp, by reason of his supposed or assumed professional character,
In view of the facts before us, we are clearly of opinion that the rule established by the authorities cited, and which is doubtless the true one, is inapplicable in this case.
4. It is contended that the defendant’s motion ought not to be granted, because Camp is, and always has been a non-resident of this state; and has had, ever since the rendition of the judgment, and yet has, elsewhere than in this state, property and effects which he unjustly refuses to apply to the payment of the judgment.
"We have seen that the language of the first section of the non-imprisonment act is general and without qualification, “ that no person shall be arrested or imprisoned,” &'e. Th.e only restriction upon the generality of its application, is contained in the last section, which provides that it “ shall not extend to residents of a foreign power who haye contracted debts with residents of this state, before
I can perceive no materiality to the fact that Camp had property elsewhere than within this state which he unjustly refused to apply to the payment of the plaintiff’s judgment against him. Does it tend to show a forfeiture of the defendant’s recognizance of special bail ? To my mind, clearly not. What was the defendant’s undertaking? It was, that, if Camp was condemned in the action at the suit of the plaintiff, and failed to pay the costs and condemnation of the court, or to render himself into the custody of the sheriff of the county of Wayne, he, Newberry, would pay the costs and condemnation for him; and not that, if Camp had property and effects out of the state, and unjustly refused to apply the same to the payment of the judgment, he would pay, &c.
The fact last stated might well be made the foundation for proceedings against Camp, if he were within the jurisdiction of the court in which the judgment was rendered, under the provisions of the third and fourth sections of the act. But I am unable to see how it can, in any way, affect the liability of Newberry.
If it be said that the plaintiff is prevented from resorting to the remedy provided by the non-imprisonment act, for compelling a disclosure of the debtor’s effects, by reason of his having gone without the jurisdiction of the court in which the judgment was rendered, and that, therefore, there has been a forfeiture of the defendant’s recognizance, it may be well answered, that the defendant did not undertake that Camp should remain or be found here for
Suppose Camp were within the county of Wayne, and were, in fact, liable to be proceeded against, under the third and fourth sections of the act, for a fraudulent concealment of his property. Could that operate a forfeiture of the defendant’s recognizance ? That will not be pretended. Camp could not be taken by a ca. sa. on account of such fraud. In a proceeding under the sections of the act mentioned, he could be punished for such fraud by imprisonment, until he should pay or secure the debt, ox-surrender his property for that purpose. But, as we have just said, the defendant did not obligate himself to keep or have Camp here that he might be thus punished.
Ordered certified that the motion ought to he granted.
