Doyle v. Boyle

19 Kan. 168 | Kan. | 1877

The opinion of the court was delivered by

Brewer, J.:

This was an action on an undertaking given under section 511 of the code of civil, procedure. (Gen. Stat., p. 730.) A demurrer to the petition was overruled; and this is the first alleged error: the undertaking is copied in the petition, and the specific objection is, that it does not show that the party for whom it was given was actually in jail. The language of the statute is, “any person imprisoned under the provisions,” etc., while the recital of the undertaking, as well as the averment of the petition, is—“has been arrested and is now in the custody of the sheriff,” etc. In support of this objection the case of Lytle v. Davis, 2 Ohio, 277, decided' in 1826, is cited. And this case it must be conceded is very strongly in point. In it it was held that a bond given for prison limits was void unless the defendant was actually in prison, and that fact was recited in the bond. The binding authority of this decision is invoked upon the rule laid down in Bemis v. Becker, 1 Kas. 248, that where one state boi'rows or adopts a statute of another, it is presumed to take it with the construction placed upon it by the judiciary of that state. That rule is hardly applicable in this case, for the statute then in force in Ohio differs materially from ours, as well as from the later statute of that state. True, there is a general similarity, as there is between the statutes of many states bearing upon this subject-matter, or indeed upon almost any given subject; and the word “imprisoned,” upon which special reliance was placed by the court in that case, appears in our statute as well as in the later one in Ohio. But there is no such identity, actual or substantial, that it can bg presumed that our legislature simply adopted the old Ohio statute, or intended to transfer that statute, with the constructions it had received, to this state. Again, the construction of a single clause or section is often affected by the general system of the law of which it is a part. And it will be remembered that there has been going on for years a wonderful change in the provisions of law concerning imprisonment for debt. At the time of that decision the law still allowed imprisonment for debt, though it must be conceded it was departing from the hardships of the common law. Section 15 of art. 8, of the Ohio constitution of 1802, was then in force as follows:

“The person of a debtor, where there is not strong presumption of fraud, shall not be confined in prison, after delivering up his estate for the benefit of his creditor or creditors, in such manner as shall be prescribed by law.”

Now neither Kansas nor Ohio tolerates imprisonment for debt except for fraud. Const. Ohio, § 15, art. 1; Const. Kansas, Bill of Rights, § 16. This practically excludes imprisonment except as a punishment for acts criminal, or quasi criminal, and leaves the unfortunate but honest debtor free from any possibility of personal restraint. Now the construction then given to words and phrases in the statutes concerning imprisonment for debt, while perhaps just and fair when considered in reference to the general policy of the law, might be open to severe criticism if insisted upon when used in statutes framed under an entirely different policy. We do not feel therefore bound to follow that decision in the meaning given to the word “imprisoned.” We see no reason why a party should be actually put into a jail, and locked up before he is permitted to avail himself of that statute. The term “imprisoned,” is not generally so limited. Does not the action of false imprisonment lie for any illegal apprehension and detention? Bouvier says in his Dictionary, vol. 1, p. 612, that “as to what will amount to an imprisonment, the most obvious modes are confinement in a prison, or a private house; but a forcible detention in the street, or the touching of a person by a peace officer by way of arrest, are also imprisonments.” It is doubtless true, that there must be an actual arrest and detention; that there is in this respect no mere constructive imprisonment; that as held in the case of Berry v. Adamson, 6 Bar. & Cress. 528, the mere execution and sending of a bail-bond by a defendant on receiving a message from a sheriff that he has a writ, makes no imprisonment. Again, it is a well-known fact that many counties in this state have been at different times without any jail, and special provision is made for confinement in the jail of one county of persons charged with crime in other counties destitute of jails. (Gen. Stat. 532, §16.) But there is no such provision as to persons arrested on civil process. And as counsel pertinently asks, “must the sheriff wait till a jail is erected before he is authorized to accept the bond?” It is made the duty of the sheriff having process against the person “to arrest such debtor and commit him to the jail of the county until he pay the judgment, or is discharged according to law.” (Gen. Stat. p. 728, § 505.) The sheriff is by law the keeper of the jail. (Gen. Stat. p. 530, § 3.) Now from the moment of the arrest until the final discharge, the debtor is in the custody of the sheriff, and is equally in his Custody whether before or after he has crossed the threshold of the jail. What difference then whether the bond be executed before or after he has so crossed? The purpose of the statute was to give to the debtor taken under process the limits of the county in which to labor or carry on business, so as to make the debt and at the same time prevent his going beyond the reach of process and the watch of the creditor. That purpose is accomplished if the debtor is permitted to give bond as soon as taken into custody. We see no good reason for limiting the meaning of the word “imprisoned” to actual confinement in the jail, but think it may fairly be construed as denoting the actual detention by the sheriff under the writ; and when a debtor is so seized and held, it seems to us he may be considered, in the language of the statute, as one “imprisoned under the provisions of this article.” There was no error therefore in overruling the demurrer to the petition.

Afterward the defendants filed an answer setting up two defenses, the first specifically alleging that Quinn was not put into jail by the sheriff, and the other alleging a surrender by the sureties to the sheriff. A demurrer to these two defenses was sustained, and this is alleged as error. But counsel in his brief fails to point out wherein he claims there was error other than in the matter already considered by us, and we shall certainly not seek to find errors when counsel has found none.

After the demurrer to the answer was sustained, there was no issue of fact to be tried.

The judgment will be affirmed.

All the Justices concurring.