Ex parte Hardy

68 Ala. 303 | Ala. | 1880

Lead Opinion

SOMEBYILLE, J.

The relator, John Hardy, was sentenced to imprisonment in the jail of Dallas County, on May 10th, 1881, for an adjudged contempt of court, under the following state of facts: Under the provisions of sections 3887-3889 of the Code of 1876, a bill had been filed by Ransom & Co. against Hardy and others, on the equity side of the City Court of Selma, praying for a discovery of property, money or effects in the hands of said defendants, which were alleged to be liable to the satisfaction of complainants’ judgments, upon 'which there had been a return of “no property found” by the sheriff. On the trial of the cause, the court found that the defendant John Hardy, who is here the petitioner, had in his possession sundry United States bonds, more than sufficient to satisfy the debts claimed of him,.and ordered him to deliver to the register, within a time fixed by the decree, these bonds, or so many of them as might be necessary to pay these judgments and costs of suit. This the defendant refused to do, alleging an excuse deemed by the court untrue, and therefore insufficient. And for such refusal he wap adjudged guiity of a contempt, and sentenced to imprisonment until be should obey this mandate of the court. A petition for the writ of habeas corpus was presented to the Hon. N. S. Graham, Chancellor of the Eastern Chancery Division of the State, the prayer of which was, on final hearing, refused by him, and thereupon the application is renewed before this court.

Sections 3887-3889 of the Code, under which these proceedings were had, provide as follows :

§ 3887. “In every case where execution may have bees, or hereafter shall be, issued from any court of record in this State, upon which there is a return of “no property” by the proper officer, the plaintiff in such execution, his assignees, executors, or administrators, may file a bill in the chancery court of the chancery district in which such defendant may reside, or in the county in which the judgment or decree was rendered, alleging that execution has been issued and returned as aforesaid,, and that the defendant has property, money, or effects, which are liable to the payment of the debt, and requiring the defendant to answer, under oath, what property he has, the nature thereof, in whose hands it is, and where situated ;~and any number of parties may join as complainants in such bill.”

§ 3888. “Whenever it shall appear to the court, from the answer of 'the defendant, or from other evidence,.that the defendant has money, property or effects, as aforesaid, either in or out of the State, it shall have power to render a decree, requiring the defendant to -pay or deliver to the register of the chancery court, within a time to be fixed by said decree, such money, effects or property, as the court may determine ought to be paid or delivered, for the. payment of such execution; and the court in term time, or the chancellor in vacation, may make all necessary orders for the collection and recovery of such effects or money.”

§3889. “If any such defendant shall fail to comply with the terms of such decree, he shall be guilty of a contempt; and the court, or the chancellor in vacation shall, upon the report of the register to that effect, have the power to imprison the defendant in the county jail until he shall obey the decree; and all transfers or assignments of any property by the defendant, after the filing of sucb bill aginst him, shall be void.”

It is insisted by the petitioner’s counsel that these sections of the Code, which embrace the provisions of an act of the legislature, entitled “An Act to extend the jurisdiction of courts of chancery,” approved March 8, 1871 (Session Acts 1870-71, p. 34), are unconstitutional and void, as being violative of Sec. 21, Art. 1 of the constitution of the State, at least so far as they authorize the imprisonment of a defendant. This section of the Declaration of Rights declares that “no person shall be imprisoned for debt.”

The only question arising for our determination is, whether the sentence to imprisonment for the alleged contempt in this case is, in its essential nature and purposes, an “imprisonment for debt.” If so, the law authorizing it is void, otherwise not.

It can not be denied, that every court is the exclusive judge of a contempt committed in its presence or against its process, and that the exercise of such power by a court of competent jurisdiction can not be revised on error, nor assailed collaterally by resort to a writ of habeas corpus. In Re Cooper, 32 Vt. 253; People v. Sturtevant, 9 N. Y. (5 Seld.) 263; Ex parte Adams, 25 Miss. 883; Ex parte Henry Sam, 51 Ala. 34.

But where there is either a want, or excess of jurisdiction in the committing court, a writ of habeas corpus is then the appropriate remedy for the release of the prisoner.—State v. Towle, 42 N. H. 540; Ex parte Brown, 63 Ala. 187; Ex parte Simmons, 62 Ala. 416; Ex parte Grace, 12 Iowa, 208. The present application is, therefore, the proper method of testing the constitutionality of the .statutes in question, and of thus assailing the jurisdiction of the primary court by virtue of whose order the prisoner is restrained of his liberty.—Code, § 4936; In matter of Blair, 4 Wis. 521.

The ordinary power of courts to punish contempts, as a means of enforcing obedience to their lawful orders and decrees, is in no wise challenged or denied, but is fully recognized in argument by the petitioner’s counsel, as being imperatively necessary to the administration of justice. No doubt can be entertained of their authority to enforce such decrees by process of attachment, without which they would be bereft of all possible power to maintain the majesty of the law as against refractory litigants, and even impotent to preserve their own existence.—Ex parte Walker, 25 Ala. 108; Gates v. McDaniel, 3 Port. 358; Randall v. Pryor, 4 Ohio, 424. It is often said that contempts of court are in the nature of a “special criminal offence,” and the proceedings for their punishment are in the nature of a criminal procedure.—In Re Williamson, 26 Pa. St. 9. However this may be, punishments for contempt have a double aspect: First, To vindicate the dignity of the court from disrespect exhibited to it, or its orders. Secondly, To compel the performance of some order or decree of the court, which it is in the power of the party to perform, and which he, without sufficient excuse, refuses to obey.—In Re Chiles, 22 Wall. 158.

It is urged that a debtor can not be coerced, by the use of this process, into paying an ordinary debt, through the guise of a law which seeks to pronounce the refusal to do so a 'contempt; and that such a procedure is really and logically but another form of “imprisonment for debt.” The solution of this question requires us to construe the meaning and effect of the present constitutional provision, found in the bill of rights, that “no person shall be imprisoned for debt.”—Const. 1875, Art. 1, § 21.

The same guaranty occurred for the first time, in its present form, in the constitution of 1868, being there embodied in identical phraseology.—Const. 1868, Art. 1, § 22 (Decl. Rights). The history of this guaranty against imprisonment for debt in the various constitutions, heretofore adopted in Alabama, and the change in its language, become important in our efforts to ascertain its proper meaning, for it is a sound rule of construction, that such charters of liberty are always to be interpreted, not only in the light of the common law, foutalso by comparison with previously existing constitutions.—Mayor &c. v. Stonewall Ins. Co. 53 Ala. 570. Said Brickell, C. J. in the latter case: “New provisions, having their origin in larger experience, introduced into an amended or revised constitution, are to be construed, and allowed such operation as will secure the purposes for which they were introduced ; and these purposes are to be ascertained from a just consideration of the causes in which they originate.”

In the constitution of 1819, Section 18, Art. 1, which is the clause relating to the imprisonment of debtors, reads as follows: “The person of a debtor, where there is not strong presumption of fraud, sh^ll not be detained in prison, after delivering up his estate for the benefit of his creditors, in such manner as shall be prescribed by law.” The same language precisely occurred in the constitution of 1861 (Art. 1, § 18), and again in that of 1865 (Art. 1, § 22), and thus constituted a part of the fundamental law of Alabama uninterruptedly for nearly half a century.

. We may premise the consideration of this important question, by saying that it has been, as we think properly, decided, that similar provisions in the several State constitutions against imprisonment for debt apply only to actions based on contracts, express or implied, and that they do not extend to actions originating in tort.—People v. Cotton, 14 Ill. 414; Cotton v. Sharpstein, 14 Wis. 226. Hence it has been held, that a statute allowing an arrest in a civil action for libel does not violate a section in the constitution of North Carolina, which provides that “there shall be no imprisonment for debt except in cases of fraud.”—Moore v. Green, 73 N. C. 394. And again, in like manner, that the constitution of the State-of Georgia, which simply prohibited “imprisonment for debt,” was not violated by imprisonment under bail process in an action of trover. Harris v. Bridges, 57.Ga. 407. It is not to be supposed, that the framers of the constitution intended to-prohibit the legislature from authorizing the remedy of incarceration as a means to coerce the payment of damages- originating ecc delicto, but only of a debt originating ex contractu, Where the property of another than the debtor has been taken by fraud or violence, or is withheld so as to tortiously deprive the true owner of his rights, the act is quasi criminal, and the prohibition as to imprisonment has no application.—Caldwell v. The State, 55 Ala. 133.

The sole object of all rules and maxims of interpretation is, to discover the true intention of statutes and constitutions, and “ whenever that intention can be indubitably ascertained from allowed signs and by admitted means, courts are bound to give it effect, whatever may be their opinion of its wisdom or policy.” Potter’s Dwar. Stat. 178. This intention is, in the first instance, to be collected from the words used, — reading the law according to the natural and obvious-import of its language, without resorting to a subtle and forced construction, either for the purpose of limiting or extending its-operation.—Waller v. Harris 20 Wend. 561. But, as a proper guide to this end, it is frequently of the highest importance to consider, what was the state of the case before the adoption of the given - statute or constitutional clause under investigation, and also wbabwas the mischief or defect, against which it failed to provide. This involves a consideration also of the remedy provided, and the true reason of it. Potter’s Dwar. Stat. 184. This has been well denominated by Lord Coke as “ the very lock and key to set open the windows of the statute.”—2 Inst. 301.

The history and nature of laws authorizing imprisonment for debt and torts at common law, throw no inconsiderable light upon the present question, and ought, for this reason, to be kept in view in our efforts to arrive at a proper conclusion. Cooley’s Const. Lim. 74. And it is accordingly a significant fact, that, in the early history of the common law, while the King, as plaintiff in any action, whether for debt or fort, had an execution against tlie defendant’s property and body, no other person besides him was entitled to process against his body except in actions of trespass vi et armis. This remedy was not then permitted in actions of debt. Harbert’s case, 3 Co. 12, a. The extension of this right to other forms of action was the gradual work of Parliamentary legislation, between the thirteenth and sixteenth centuries. The ancient mandate of the writ of capias ad satisfaciendum required the sheriff to “ take and keep the body [of the defendant] so that he may have it on the return day of the writ at Westminster, to satisfy the plaintiffs of their damages, costs and charges.” And the defendant being taken, remained in custody, until he satisfied the plaintiff’s demand, and was released so soon as he did so.—Tidd’s Prac. 1028-29. At common law, then, the imprisonment of the debtor was simply a process of physical duress by incarceration, by means of which he, or his friends through sympathy for him, were coerced into paying the debt, and possibly also it may have been originally designed to be somewhat punitive in its purposes. In Sturgess v. Crowninshield, 4 Wheat. 122, it was said by Marshall C. J. that “ 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.”

Erom 1819 up to 1868, a period of nearly fifty years, this method of duress in civil actions except in the matter of preliminary bail, was permitted in this State only in cases of fraud, and the debtor was then forbidden to “be detained in prison after delivering up his estate for the benefit of creditors, in such manner as shall be prescribed by law.”—Const. 1819, Art. 1, § 18; Const. 1861, Art. 1, § 18; Const. 1865, Art. 1, § 22.

The legislative interpretation of these several constitutional provisions, which are identical in language, is of weighty consideration, and receives yet greater emphasis from the cotemporaneoua exposition of the Bar, and the acquiesence of the Bench. Contemporanea expositio est optima et fortissima in lege.—2 Inst. 11; Cooley’s Const. Lim. 81. During this period of time imprisonment for debt was not authorized in Alabama, except in-cases of fraud, and save for a time only on preliminary bail, where the defendant was about to abscond; or had fraudulently conveyed his property, or was about to do so; or where he had money, property or effects liable to satisfy his debts which he fraudulently withheld—Aiken’s Dig. p. 49-50, § § 1-10. Clay’s Dig. 70-75, § § 1-19; Code, 1852, § § 2175-91; Rev. Code, 1867, §§ 2574-92.

This legislation, it is manifest, was intended to impart legal and vital force to’ the excepted cases, engrafted on the debt-imprisonment clause in the State constitutions then existing, permitting the body of the debtor to be taken in arrest in certain specified contingencies. Cases of fraud were understood to be an exception to the general prohibition against such imprisonment, and the rule is. cogent that the designation by mention of one class of exceptions is a refusal to include within the scope of the exception all others. Apart from the operative influence of the exception, cases of fraud would seem clearly to come within the general rule.

Such was the state of the law when the constitution of 1868 was adopted. It was then declared by that instrument, for the first time in the history of the State, that “ no person shall be imprisoned for debt.”—Art. 1, § 22, (Decl. Rights). Nearly eight years later the same guaranty to the liberty of the citizen was secured and re-affirmed, in like words, by the constitution of 1875. Art. 1, § 21, (Decl. Rights). No exception is made in cases of fraud, or otherwise. Legislative caution, indeed, seems to be precise and exact in the intentional exclusion of such cases, which for so long had previously been recognized in theory, and constantly acted on in practice. The constitutional prohibition is general; the guaranty in its words is universal, unless the spirit and reason of the mandate can, by legitimate construction, be made to rescue certain cases from its letter.

Interpreting the two last constitutions in the light of the former three, we can scarcely conclude that absolutely nothing was intendedor effected by this change. “The prior state of the law,” says a learned writer on constitutional law, “will sometimes furnish the clue to the real meaning of an ambiguous provision, and it is especially important to look into it, if the constitution is the successor of another, and in the particular in question essential changes have apparently been made”.—Cooley’s Const. Lim. (4th Ed.) 79-80. Imprisonment for debt had been long prohibited ; but imprisonment for debt in cases of fraud was specially permitted. In these cases alone, so fully described in the details of legislation, was the incarceration of the debtor’s body authorized to compel the payment of the debt. If the deliberate omission of this exception from the two last constitutions is not permitted to operate on the cases formerly construed to come within the exception, then there is no scope for it, the change is nugatory, and the striking out of the exception means nothing.

Accordingly, when the Code of 1876 was adopted and promulgated, all laws contained in previous Codes, authorizing imprisonment for debt, were omitted by the Codifiers, and this omission was ratified by the legislature, thus recognizing their repugnancy to the amended constitution. This, in other words, was an emphatic legislative affirmation of the fact, that the whole system of imprisonment “for debt,” with its machinery of duress, had been abolished and swept away by the constitutions of 1868 and 1875.

But it is argued, that this change was not intended to interfere with the traditional power of chancery courts to punish for contempt all refusals to obey their lawful decrees and orders, and that these tribunals of justice have, from the most ancient period of their existence, exercised the right to force the payment of money, or the delivery or transfer of property, by one suitor to another.—2 Dan. Ch. Pr. 1045-6. This proposition may be conceded to be sound without affecting the case at bar in any respect. The power in question was never exercised by chancery courts, except in those cases where a trust in the property or fund arose between the parties litigant, or some specific interest in it was claimed, or the chattel had such peculiar value and importance that a recovery of damages at law for its detention or conversion was inadequate. Such interference was in the nature of a bill quia timet, and was asserted only on a proper showing that the fund or property was in danger of loss or destruction. No jurisdiction to compel the payment of an ordinary money demand, unconnected with such peculiar equities, ever existed in chancery courts, nor had they the power to compel such payment by punishing the refusal to pay under the guise of a contempt. The act authorizing it is a clear and sweeping innovation upon established equity jurisdiction. 1 Story’s Eq. Jur. §§ 708-710; 2 Story’s Eq. Jur. § § 839-845; Insur. Co. v. Dickinson, 38 Ill. 289.

The case of Wightman v. Wightman, 45 Ill. 167, involved the construction of a clause in the constitution of the State of Illinois similar to our own. The chancery court, on petition of the complainant for a divorce, had made an allowance for alimony, payable in semi-annual instalments. The defendant refused to pay the amounts as ordered and was attached for contempt. He claimed exemption from the process on the ground that it was an imprisonment for debt. A divided court sustained the legality of the proceeding, but placed it upon the ground that alimony, thus decreed to be paid, was not a debt. The court say : “ The amount found by the decree was not originally founded upon a contract, and it was such debts only from which the debtor could claim exemption from imprisonment.” Walker J. dissented from this conclusion, the other two judges concurring in its correctness. The reason of the decision is clearly a strong argument in favor of the position that, where the claim upon which the suit was founded is a debt, there can be no coercion of its payment by a resort to the process of contempt. The Supreme Court of Missouri held in Coughlin v. Ehlert,39 Mo. 285, that an order for the payment of alimony is simply an order for the payment of money, and could not, therefore, be enforced by imprisonment for contempt of court, incurred in refusing to obey a decree directing its payment, because imprisonment for .debt was abolished by the State constitution. And so, in Roberts v. Stoner, 18 Mo. 481, it was decided that a sequestration merely to compel the payment of money could not be enforced for the same reason.

In Ex parte Grace, 12 Iowa, 208, which was an application for habeas corpus, the petitioner sought discharge from a commitment for contempt for refusal to pay over money in his possession which he withheld in disobedience of the order of the District Court. The statute, under which that case arose, was the same, in substance, with that under which these proceedings are had. But the constitution of Iowa did not prohibit imprisonment for debt in eases of fraud. Such cases were made an exception. The attachment was sustained only by construing it to come within the constitutional exception. The court said: “The'failure of the'debtor to surrender his property, liable to execution, to the payment of the judgment, might well be such fraud as that, within the meaning of the constitution, he would forfeit Ms right to claim exemption from imprisonment.” It was, in other words, a fraudulent withholding of his property by the defendant, which was liable to the satisfaction of his debts, a ground of fraud, ’.which always authorized a bail writ or a ca. sa. under our abolished practice. The Iowa statute, however, was declared void on the ground, that it was repugnant to a clause in the constitution of the State, which declared, that “the right of trial by jury shall remain inviolate,” a conclusion in which it is not necessary that we should concur for the purposes of this case. The sound principle was announced, that the legislature could not, by an evasion of the constitution, render that which toas in its essence a suit at law, a proceeding to punish for contempt. See also Blair's Case, 4 Wis. 531.

The law now under consideration was originally entitled •“ An act to extend the jimsdiction of courts of chancery.” Acts 1870-71 p. 34. The act imports on its face the fact, that the jurisdiction conferred was one not before possessed. It brought, as before observed, a new subjoct matter within the range of chancery jurisdiction. Its clear design was to provide a machinery for compelling the payment of an ordinary debt by the defendant, when he fraudulently withholds property, money or effects, which are not exempted from execution at law. The purpose of the law is to force the payment of the debt which is the basis of the suit. The defendant is attached and imprisoned, because he does not deliver the money or' property, in order to pay the debt. If the debt is paid, the prisoner is released. If lie does not deliver the property or money to the officer of the court, for the ultimate satisfaction of the complainant’s debt, his imprison-men-t is "continued.. Th© indirection- employed* ®a® not aicl the matter,, for the express prohibitioni ®f a¡® end i» also ais implied prohibition oí all an-d every means- designed and msed solely to reach that end.. What can not he done dweetly, is also prohibited to-be- done indirectly. The payment o-r delivery to the- register i® only for the- benefit of the complainant.. Characterizing, the- refusal to- pay or deliver a® a contempt,, does, not make it such,, if it appears,,!» its essence- and nature,, to- be- otherwise,, and is-merely a new legislative* creation to accomplish by evasion,, an «sní&wfid or mscoastitu;-tional end,

"We are o-f opinio» that th© law,, in its trae- ©sse-nee and purposes, is one authorizing,, by indirection, imprisonment for debt.—In Re Blair, 4 Wis. 521; Cotton v. Sharpstein, 14 Wis. 22_ .

_ This- ©on-elusion is- corroborated- by another view of th© ease-. So long as the body of the debtor was authorized to> be taken in arrest in this- State,, the right was-.earefutly regulated by law. It was- permitted’ only in cases of fraud. The creditor was compelled to- make oath to Ms debt, and &lso< fco> the-fact of some fraudulent practice on the part of th© debtor. H© was also required to give security for ©osts. The- right of bail was carefully secured* amd the- debtor eotriol be discharged by taking the-in solvent oath and purging himself of fraud.. He was also entitled' to a, trial by jury, which is, perhaps, at last the- great sheet-anchor ©f Anglce-Saxora liberty.—Rev. Code §§ 2574-2592.

If the law in question is permitted to stand, a result rather startling, of necessity, must follow. A new and unexplored field of jurisdiction is- extended to courts of chancery, not heretofore- opened to them.. The old power to irsprisoo for debt is-re-established under the guise of a new form. ATI legislative safeguards- against its: improvident abuse will have been swept away. No oath is required to any tangible aet of fraud by the debtor. No- security for costs- is required. No method is provided for the rendition of the debtor’s schedule of effects, nor for settling his claim of exemptions. Th© valuable privilege of bail is: denied him, and he is deprived of the right of trial by .fury.

We can not suppose that this was intended to follow by the framers of the constitution, and the law-making powey that adopted the present Code. If so, the rights and liberties of the citizen have been abridged, and not enlarged by the amendment of the clause under consideration. The debtor is -in a worse condition under the present constitution-, with its general prohibition that “ no person shall be imprisoned for debt,” than he was under the former constitutions providing expressly that there might, in some cases, be such imprisonment. Annulling' the exception thus operates rather to diminish than increase the scope of the constitutional rule, and imprisonment for debt is not mitigated, but becomes more rigorous in a new phase, and harsher under the Protean form of a new name. Denominated a contempt, it is virtually unregulated by any law, in many essential details, save by the conscience of the chancellor.

We are unwilling to adopt this conclusion, and to believe that such results were intended. To do so, would be to ignore a cardinal principle of construction, which requires that constitutional provisions for the protection of life, liberty and property, are to be largely and liberally construed in favor óf the citizen—Dorman v. State, 34 Ala. 216.

Under these views, we are constrained to conclude, that so much of section 3889 of the Code of 1876, as authorizes the imprisonment of a debtor in the county Jail for a refusal to pay or deliver to the register his money, effects or property lor the payment of a complainant’s judgment, is im violation, of section 21, Art. 1 of the constitution, and therefore null and void. An order committing a defendant for contempt for such refusal is an imprisonment for debt, and as such is prohibited by said section of the Declaration of Bights. Whether the provisions of this law, in its present shape, are so separable as to authorize such imprisonment, where the complainant’s judgment is founded on tort, while at the same time it is void as applicable to those founded on contract, is a question not now before us, and which we are not called on to decide.

The writ of habeas corpus and certiorari will be awarded by this court to bring the petitioner before us, together with the proceedings had before the chancellor, unless on another application renewed before him, he shall order the petitioner to be discharged from custody.—Ex parte Moore 62 Ala. 471.

•STONE, <J. ■concurring.

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Dissenting Opinion

BRICK ELL, 0. J.

dissenting. — I am constrained to dissent from the opinion and judgment of the court, and, as briefly as I can, will state the reasons of my dissent, and my views of the case.

The relator is imprisoned by virtue of a writ of attachment, issuing from the City Court of Selma, founded on an order of the court, adjudging him guilty of a contempt for failing to obey a decree rendered in a cause, to which he was a party defendant, ascertaining and adjudging that he had in his possession a; certain number oí United States bond®of a particular denomination, which were subject to-the payment of judgments at law in. favor of the complainants in said cause-, and further adjudging that, bj a day specified, he pay such judgments, or failing therein, deliver to the clerk and register of said court so m-any of said bonds as would be sufficient for the payment. It is- shown by the writ, that the relator had notice of the decree, and failed to obe-y it. Imprisoned under this writ, on behalf of the relator, an application was made to the Chancellor of the Eastern Division, for a writ of habeas corpus, which was issued. On the hearing of the writ, the sheriff of the county of Dallas having custody of the relator, and to whom the writ of attachment was directed, made return of that writ, as. the cause of- the detention and imprisonment. The chancellor refused to discharge the relator, ordering that he be remanded to the custody of the sheriff. The application is now in this, court renewed.

It is of some importance to ascertain the precise character and nature of the jurisdiction the court is invoked to exercise. Since the ease of Ex parte Simonton, 9 Port. 383, it has-been regarded as settled, that this court has not original power to award a writ of habeas corpus. Erom this court the writ may issue, only when necessary in the exercise of the “general superintendence and control of inferior jurisdictions,” with which it is clothed by the constitution.—Cheney, Ex parte, 8 Ala. 424; Ex parte Croom, 19 Ala. 561; Ex parte Burnett, 30 Ala. 461. The necessity which will authorize the issue of the writ from this court does not exist, unless some court, or the judge of some court, invested with jurisdiction-to act in the premises, has undertaken to- decide upon the ease of á party aggrieved, or else, without any just cause therefor, has refused to- entertain the same. Tlie practice to be pursued in obtaining the writ from this court was very deliberately and carefully prescribed in Ex parte Croom, supra. The party aggrieved by the action, or the refusal of the inferior jurisdiction to act, must on oath present a petition or application to this court, disclosing a state of case which will show that the inferior jurisdiction has erred to his prejudice, and that upon the case made before that jurisdiction, he is entitled to the relief he seeks. It is appellate jurisdiction this court exercises ; and the only inquiry which can be entered upon is, whether, upon the facts before it, the inferior jurisdiction has erred to the prejudice of the petitioner. A new case can not be made in this court, — deficiencies in the case presented to the inferior jurisdiction, if any there be, can not be supplied. Whether, upon the case and facts before it, that jurisdiction has erred, I repeat, is the whole scope of inquiry in this court. In Ex parte Cleveland, 36 Ala. 306, which, like this case, was an application for a writ of habeas corpus, this court said : “ The facts which were made to appear to Judge Rapier, are not brought to our.notice; and, hence, we are not able to say on what facts he based his decision. This, of itself, is enough to require us to withhold the writ. We can not say that he erred, unless we know upon what facts he pronounced judgment.”

What were the facts before the chancellor, exeept the return of the sheriff to the writ of habeas corpus, this court is not informed otherwise than by the petition here filed. No exception was taken to his judgment, no statement of the facts upon which the judgment was founded, is certified to this court in any authentic form. The petition here filed alleges that the writ of attachment was founded on a decree, rendered by the City Court on a bill filed on the equity side of the court, containing particular allegations. But it is not the office of the petition to this court to certify the facts which were before the chancellor; that is the office of a bill of exceptions or some statement certified by the chancellor. There can be, on the case now presented, in this court, but a single inquiry, and that inquiry is, whether the process vouched as the cause of the detention of the relator is void, — whether it emanated from a court having jurisdiction to employ it.

The City Court of Selma “ is an inferior court of law and equity,” ordained and established by the General Assembly, in the exercise of the power with which it is clothed by the first and thirteenth sections of the sixth article of the State constitution. While it is denominated an inferior court, it is not, in a technical sense, such a tribunal. It is not of special and limited jurisdiction,bound, at the peril of having its judgments disregarded, to show its jurisdiction upon the face of its proceedings. All courts from which an appeal lies are inferior courts in relation to the appellate courts before which their judgments may be carried, but they are not, therefore, inferior courts in the technical sense of the words. Because of its subordination to this tribunal, — because its judgments and decrees may be here reviewed, and. reversed or affirmed — the city court is an inf'erior-court, and not in consequence of the nature and character of its constitution and jurisdiction.—Nugent v. The State, 18 Ala. 521; Ex parte Roundtree, 51 Ala. 42. The statute creating and establishing the court invests-it with “ the powers and jurisdiction which are now, or may hereafter be conferred by law on the several circuit and chancery courts of this State.” When exercising powers and jurisdiction pertaining to courts of law, it is required to conform to the practice and procedure prevailing in circuit courts; and when exercising the power and jurisdiction of a court of equity, it must conform to the practice and procedure of those courts in this State.—Pamph. Acts, 1875-6, p. 386.

The- constitution ordains and establishes courts of equity, without defining the jurisdiction they am to exercise. The consequence is, that the jurisdiction of the court, so far as is consistent with our form of goverment, and our institutions, embraces the same objects, is derived from, and eo-esten-fcive with that of the English Court of Chancery.—1 Story’s Equity, Jur. § 57; Carter v. Balfour, 19 Ala. 814; Waldron v. Simmons, 28 Ala. 629; Goodman v. Winter, 64 Ala. 410. The jurisdiction is exercised in the inodes pertaining to the English courts, and the practice and procedure of those courts are observed, so far as not changed, altered, or modified by statute, or by rules prescribed by this court. — 1 Story’s Equity Jur. § 58. In addition to the original jurisdiction of a court of equity, statutes have been enacted extending and enlarging its powers and jurisdiction. Whatever of power or jurisdiction, original or statutory, a court of equity may possess, the City Court may rightfully exercise, and in its> administration must observe the practice and procedure, and employ the remedies courts of equity may observe and employ.

Originally, in the absence of statutes providing otherwise, and providing other remedies, decrees of courts of equity, of whatever find or nature, operated strictly and exclusively in personam. The only remedy for their enforcement was by what was and is termed process of contempt, under which the party failing to obey them was arrested and imprisoned, until he yielded obedience, or purged the contempt by showing that disobedience was not wilful, but the result of inability not produced by his own fault or contumacy.—O'Callaghan v. O’Callaghan, 69 Ill. 552. In Mitchel v. Bunch (2 Paige, 615), said Ch. Walworth: “The original and primary jurisdiction of this court was in personam merely. The writ of assistance to deliver possession, and even the sequestration to compel the performance of a decree, are comparatively of recent origin. The jurisdiction of the court was exercised for several centuries by the simple proceeding of attachment against the bodies of the parties, to compel obedience to its orders and decrees.” In this respect, the proceedings of courts of equity differed materially from those of courts of law, where the writs by which execution of their judgments is compelled are not founded on any contempt of ihe court committed by the defendant, but are considered as a means of satisfying the plaintiff.—2 Dan’l Ch. Pr. (30 Perkins’ Am. Ed.), 1045-1054. This plain difference in the theory, mater© .amd character ef ihe remedy in equity for the «enforce-anemt ©f decrees, and tke ¡remedy at law for tke enforcement «of judgments,, it is important to feeas: in mind, in tke ‘Consideration .of all the (questions this cause is .supposed to involve.

Tke statutes ao-w .authorize '& court of equity to issue all writs for tke collection of money, or t© obtain possession of Sand or personal property, which are in use in the common, law courts.—Code of 1876, § 3906. Under acts of Parliament tke English courts of chancery may employ like process, hut thereby the ordinary ¡remedies of the court are not excluded or superseded.—2 Dan. Ch. Pr. 1-057. Upon principle, each remedies, given by statute, are merely cumulative.—Sedgw. Stat. & Const. Law, 75, 100, n, 341-45. Our statutes expressly .provide, that “courts of chancery are authorized to issue suck process, mesne and final, as has been used in suck courts.”—Code of 1876, §3906; and it is further provided, that “courts ®‘f chancery may also enforce their deerees, orders and rules by process of attachment against the party or officer in contempt, or by process of sequestration against his property.”—Code of 1876, § 3901. Th© «clear legislative'intent is manifest to .enlarge and render more efficacious equitable remedies, while preserving th© remedies tke courts kad employed in the .absence of statutes providing others.

The process of attachment is termed process of contempt, ¡and in theory it is founded ©a the offence given the court by the failure to obey its rules, orders, or decrees. Contempts of court, it may be said, are of different species. Direct con-tempts, as they are termed, consist of open insults to the court, or to tke persons ©f the judges there presiding. Consequential or constructive contempts, not committed in facie curies, but acts or words “plainly fending to create a universal disregard of their authority,” are each, as is said in the opinion of the court, “in the nature of a special criminal offence, and proceedings for their punishment are in the nature of criminal procedure.” Blackstone treats them as misdemeanors, of which there may be summary conviction and punish-sment. If tke contempt imputed by tke attachment against the relator is of this character, — if the proceeding for its punishment is a criminal procedure, it eould not fall within the constitutional interdiction of imprisonment for debt, which is directed entirely against mere civil procedure, in civil actions. Morgan v. State, 47 Ala. 34; Caldwell v. State, 55 Ala. 133. But the contempts and tke procedure to punish them, which are quasi criminal, are distinguishable from tbe contempts, imputed, and the process of attachment employed .by a court of equity to enforce its orders, rules and decrees for the benefit or protection of its suitors; or from the contempt a party to a suit at law may commit, in disobeying rules or orders made in the progress of a cause in the interest of a party. The process of attachment, in either instance, is but a civil execution for the benefit of the party injured or in interest.—4 Black. Com. 285; Snelling v. Watrous, 2 Paige 314. Of such attachments, it is said, in Rex v. Stokes (1 Cowper, 136), that the writ is a mere execution in a civil suit, — “a matter solely between party and party.”

In Ex parte Thurmond (1 Bailey, S. C. 605), an attachment is defined as “a process issued from a eourt of record, to punish any- person concerned in, or attendant on the administration of justice, for misconduct, malpractice or neglect of duty ; and to compel a performance of its orders, judgments, or decrees, interlocutory or finaland “where it issues to compel a party to a suit to pay an award or a decree of a court of equity, or against a security for the costs of a suit, and the like,” it is civil process. The attachment, being the only remedy a eourt of equity originally employed to enforce its decrees, is, of necessity, mere civil process.—Buck v. Buck, 60 Ill. 105. When it is necessary to distinguish between a civil and a criminal proceeding for contempt, the criterion is very clearly stated in a recent decision. If the contempt consists in the refusal of a party to do something which he is ordered to do for the benefit of the opposite party, the process is civil, and he stands committed until he obeys the order. In such ease the order is not punitive, — it is simply coercive. When the contempt consists in his doing a forbidden act, injurious to the opposite party, the process is criminal, and the conviction is followed by a fine, or a penalty, or imprisonment, or both, and is purely punitive.—Phillips v. Welch, 11 Nev. 187. When the process is civil, inability to perform, the party not having voluntarily and contumaciously disabled himself from performing, will excuse and relieve from imprisonment.—Meyers v. Trimble, 3 E. D. Smith (N. Y.), 607; Galland v. Galland, 44 Cal. 475; Carlton v. Carlton, 44 Ga. 216; Smith v. McLendon, 59 Ib. 523; Wightman v. Wightman, 45 Ill. 167.

It is obvious, the statutes treat an attachment, issuing as this writ was issued, to compel performance of an act, which the court has decreed the one party to perform for the benefit of the other, as a mere civil process to be employed at the election of parties. Such a decree must specify the time within which the act is to be performed; and if there is a failure to perform, the process can only issue on the affidavit of non-performance, filed by the party for whose benefit the decree was rendered.—Code of 1876, §§ 3902-04.

The "City Court of Selma,” clothed with the power and jurisdiction of a court of equity, and, when sitting as such court, haying authority to issue an attachment against the body of a party disobeying its orders, rules, or decrees, had jurisdiction of the process, and authority to issue the writ, under which the relator is imprisoned. Whether a case existed, in which the jurisdiction and authority should be exercised, the court was invoked, and was bound to determine. The relator being imprisoned under this process, the statute requires that a habeas corpus to inquire into the legality of the imprisonment, shall be heard by the judge of the City Court, a circuit judge, or a chancellor.—Code of 1876, § 4940. By its own terms, the statute, in affirmation of the common law, excepts from the right- to and benefit of the writ of habeas corpus, all who are imprisoned by any order, judgment, decree or process of any court legally constituted, or committed for contempt, according to law, the contempt being charged in the commitment. The words of' the statute are : “No court, chancellor, or judge, on the return of a writ of habeas corpus, has authority to inquire into the legality or justice of any order, judgment, decree or process of any court legally constituted, or into the justice or propriety of any commitment for contempt made by a court, officer, or body according to law, and charged in such commitment.”—Code of 1876, § 4961. The exception seems to me to apply particularly and peculiarly to the case made by the application to the chancellor, whose judgment thereon rendered this court is asked to revise and reverse. The relator is detained in prison by virtue of the order and process of a court of general jurisdiction. It seems to me, if the order for the issue of the process can be re-examined, and, in effect, reversed and annulled, and the process vacated upon a writ of habeas corpus, when drawn in question collaterally, by a single judge, not of superior, but of co-ordinate jurisdiction, sitting in vacation, as was said by C. J. Gibson, in Com. v. Leckey (1 Watts, 66), “some very curious judicial phenomena’’ will be presented; and some of the wisest and most conservative principles of the law, essential to the security of parties, the quieting of litigation, and the efficient administration of justice, inviolable in all other procedure, must be disregarded. A judge may, in vacation, re-open and reverse the judgments he had rendered in term time, .which he could not re-examine while sitting as a court, though error and irregularity may be apparent upon the most casual examination of the record. Not only his own judgments, but the judgments of co-ordinate jurisdictions, pronounced after the most careful a.nd patient deliberation, after full opportunity of contestation had been afforded all parties affected by them, even after, by the lapse of time, they had become free from examination in an appellate tribunal, may be set at naught and nullified. The statute authorizing the city court judge, a circuit judge, or a chancellor, to inquire on habeas corpus into the legality of imprisonment, authorizes the inquiry when the detention is under the sentence and process of this court equally with the sentence of a city, circuit or chancery court. Can it be, that the judgments of this, the highest court in the land, are thereby subjected to re-examination by the judges of inferior courts, exercising judicial authority summarily, and the very questions and matters this court has adjudicated after the parties have had full opportunity to be heard, reopened and re-judged ? If this were possible, judicial proceedings might run into incurable disorder, — might become labyrinths of perplexing confusion; conflict and collision provoked between co-equal, and between superior and inferior jurisdictions; and the writ of habeas corpus, perverted from its legitimate and beneficient use, would become an instrumentality for the subversion of law and order.

The office of a writ of habeas corpus, the scope of inquiry it opens, is not by the law left in doubt and uncertainty; it is distinctly marked and clearly defined. In the Passmore Williamson case (26 Penn. State, 9), which was of peculiar interest because of its relation to vexed political questions then disturbing the country, and which will remain of permanent interest, because of the learning and ability characterizing the opinions pronounced, the province of the writ was thus defined by Black, J: “A habeas corpus is not a writ of error. It can not bring a case before us in such a manner that we can exercise any kind of appellate jurisdiction in it. On habeas corpus the judgment even of a subordinate State court can not be disregarded, reversed, or set aside, however clearly we may perceive it to be erroneous, and however plain it may be that we ought to reverse it, if it was before us on appeal or writ of error. We can only look to the record to see whether a judgment exists, and have no power to say whether it is right or wrong. It is conclusively presumed to be right, until it is regularly brought up for revision.” And Lowbie, J. said: “The habeas corpus was not intended, and could not be intended to authorize the superior judges, being substantially those of the higher courts of record, to interfere with the jurisdiction of each other. The purpose of the writ was satisfied, when the jurisdiction of the superior courts attached, for the State could not know any better means of securing a fair and impartial trial. If that, with the ordinary provisions for the correction of errors, was not sufficient, then humanity has only to acknowledge its incapacity to provide entirely against error and injustice. Certainly, the habeas corpus was not intended to provide a remedy against the unjust judgments or sentences of the higher courts; and when it is asked for, for such a purpose, it ought to be refused.”

In State v. Towle, 42 N. H. 540, referred to in the opinion of the court, it is said: “There is no doubt of the power of the court to look into the proceedings, so far as to see whether the court pronouncing sentence had jurisdiction to do it. If it be found that it had no jurisdiction, its judgment is void, and on habeas corpus the person imprisoned under it will be discharged. But if the court had jurisdiction of the subject-matter and the party, its judgment is final and conclusive, and must stand until revised by appeal, writ of error, certiorari, instituted for that purpose ; and can not be examined and revised collaterally by the writ of habeas corpus."

The decree of the City Court adjudging, that the relator should deliver the United States bonds for the payment of the judgments, and subsequently adjudging his failure to deliver them a contempt of court, and awarding process for his arrest and imprisonment, are either void, because the court was without jurisdiction of the person of the relator, or of . the subject-matter ; or, however erroneous they may be, incapable of impeachment collaterally; and it is collaterally only, that they were drawn in question upon the habeas corpus before the chancellor. No principle of law is more essential to the efficient administration of justice, and the preservation of the dignity of judicial proceedings, and is more universal and inflexible in its operation, than that when a record or process is drawn in question collaterally, it can not be invalidated for error or irregularity. And another principle of as much importance is, that a court, having jurisdiction, has the right, and is under the duty of deciding every question which arises in the cause ; and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding and conclusive in every other court. Hurd on Habeas Corpus, 334-5; Wilcox v. Jackson, 13 Peters, 511. In the Passmore Williamson Case, supra, said Black, J.: “Every judgment must be conclusive until reversed. Such is the character, nature, and essence of all judgments. If it be not conclusive, it is not a judgment. A court must either have power to settle a given question finally and forever, so as to preclude any further inquiry upon it, or else it has no power to make any decision at all. To say that a court may determine a matter, and that another court may regard the same matter afterwards as open and undetermined, is an absurdity in terms.”

When the chancellor rendered the judgment remanding the relator, there was before him no more than the return of the sheriff, vouching, as the cause of imprisonment, the writ of attachment issuing from the City Court. The return could have been Controverted, and, if controverted, could have been supported by evidence aliunde. Not being controverted, as it was the act of a sworn public officer, in the line of official duty, the presumption is of its truth. Ex parte Hunter, 39 Ala. 560. The only inquiry upon which the chancellor could enter, was, whether the court had jurisdiction to issue the process, upon any state of facts, and under any circumstances. If the court had the jurisdiction, alt other inquiries were precluded by the decree awarding the writ; for that decree put an end to such injuiries by deciding them. Ex parte Watkins, 3 Peters, 193. The decision may have been erroneous ; the facts and circumstances may not have existed authorizing the use of compulsory process against the body of the relator ; the remedy for the correction of the error was not disobedience to the decree, and a resort to the writ of habeas corpus for relief from imprisonment under it, but the ordinary remedies for the correction of errors ought to have been pursued. In People v. Sturtevant, 5 Seld. (N. Y.) 263, referred to in the opinion of the court, it is said : “ The method of correcting error is by appeal, and not by disobedience. A party proceeded against for disobedience to an order or judgment, is never allowed to allege, as a defense for his misconduct, that the court erred in its judgment. He must go further, and make out that, in point of íaw, there was no order, and no disobedience, by showing that the court had no right to judge between the parties on the subject.” If, when courts are compelled to adjudge whether a cause lies within their appointed jurisdiction, the judgment, because erroneous, could at pleasure be disobeyed and defied by a refractory suitor, the impotency of the courts would soon sink them into contempt and insignificance. It may be said, that every suit in equity involves primarily an inquiry into the jurisdiction of the court,- — whether, for the particular cause of suit, there is a plain and adequate remedy at law. There is no question, often of greater nicety and difficulty. Now, if, in every instance in which the court' may err in adjudging in favor of its own jurisdiction, the decrees and process of the court can be defied, impeached collaterally, set aside summarily by single judges in vacation, there is but little necessity of providing appellate courts, and remedies for the removal of causes to them, that errors may be corrected.

Looking alone to the process, the writ of • attachment returned as the authority for tbe detention of the relator, I am unable to perceive any ground for pronouncing the decree on which it purports, according to its recitals, to be founded, or the writ itself, void. Beyond the return we can not look, for, if it was controverted before the chancellor, the evidence is not shown and certified to us.—Ex parte Cleveland, 36 Ala. 306; Ex parte Carroll, Ib. 300. If I do not misunderstand the opinion of the court, the City Court had jurisdiction to decree a delivery of the United States bonds, and to compel obedience to the decree by the employment of this process, if a trust,, or some specific interest in the bonds was disclosed, and in the latter case, the remedy at law for their detention or conversion was inadequate. It may well be asked, whether the decree was not rendered, and the process awarded, in the one or the other of these cases. On the face of the process; there is nothing to negative the fact. The court from which it emanated is a court of general jurisdiction, not bound to disclose on its records or process the facts on which its jurisdiction in a particular case may depend. Its judgments and process are all protected, when drawn in question collaterally, by the intendment, that nothing is without its jurisdiction but that which appears to be so specifically. It is further said in the opinion of the court, that it is not decided, if the judgments at law were founded in tort, and not in contract, that the statute under which the proceedings were had, (or rather are assumed to have been-had,) would be offensive to the constitution. The line of argument adopted by the court, it seems to me, leads to no other conclusion, than that imprisonment of a defendant in an action for a tori, or to compel satisfaction of a judgment rendered in such action, may, without violating the constitution, be employed as a remedy. This question I do not consider. It is embarrassed with difficulties, when such a remedy may be employed to compel satisfaction of a judgment, of itself, and in itself, a debt of the highest dignity, that I must await a case presenting the question, before pronouncing judgment upon it. How can it be assumed that the judgments at law were founded on contract, and not on tort ? There is nothing in the record affirming the one or the other fact. By the record I mean the transcript of the proceedings before the chancellor. Is it to be intended that they were founded on contract, that the chancellor maybe putin error, and the proceedings in the City Court invalidated collaterally ?

But passing these considerations, it is a well established principle, that where a court has jurisdiction under particular- circumstances, or of a particular class of cases, error in adjudging the existence of the circumstances, or hi adjudging that a particular case is of the class to which its jurisdiction extends, does not render the judgment void and assailable collaterally. It is subject to be reversed; but, until reversed, it is binding and conclusive. Coltart v. Alten, 40 Ala. 155. The principle is as applicable to the procedure on habeas corpus, as to any other judicial proceeding. In the Tweed Case, (60 N. Y. 569), speaking of the persons excepted by the statute from the benefit of the writ of habeas corpus, the statutory exception corresponding substantially with that found in our statutes, the court said : “ To bar the applicant from a discharge from arrest by virtue of a judgment or decree, or an execution thereon, the court in which the judgment or decree is given, must have had jurisdiction to render such judgment. Th$ tribunal must be competent to render the judgment under some circumstances. ' ' ’ ’ If the record shows that the judgment is not merely erroneous, but such as could not, under any circumstances, or upon any state of facts, have been pronounced, the case is not within the exception of the statute, and the applicant must be discharged. If the judgment is merely erroneous, the court having given a wrong judgment, when it had jurisdiction, the party aggrieved can only have relief by writ of error, or other process of review. He can not be relieved summarily by habeas corpus.”

In Ex parte Cohen (5 Cal. 494), the relator was imprisoned for disobedience to an order rendered in a cause to which he was not a party, commanding him to deliver specific chattels to a receiver, and sought to be liberated on habeas corpus. The court, confining itself to the single point of the jurisdiction of the court making the order, said : “ In the examination of this question, we should be careful to distinguish between the erroneous exercise of a power conferred by law, and the. usurpation of power. If the district court has jurisdiction, under any circumstances, to make an order requiring persons, not parties to the record, to deliver property to the officers of the cpurt, the issuance of such order in an improper case would be error, certainly, which an appellate court would correct, but would not be an usurpation of power, or an excess of jurisdiction.” Now, if I concurred in the other views expressed in the opinion of the court, I would be compelled to the .conclusion, fatal to the discharge of the relator, that the City Court had simply erred in adjudging that its jurisdiction extended to a case not within the class of cases, of which it had rightful jurisdiction.

But passing to another view of the case, the relator is imprisoned under process expressly reciting on its face that he was guilty of a contempt in the disobedience of an order the City Court bad pronounced. Since Brass Crosby’s Case (3 Wilson, 188), the law has been settled, that when a superior court commits a party for a contempt, — and it is immaterial whether the contempt is criminal in its nature, or the mere disobedience to an order made in a cause for the benefit of a party— the adjudication of the court is a conviction, the commitment is execution, and the party committed is excepted from the benefit of the writ of habeas corpus. Ex parte McCullough, 35 Cal. 97. Of course, no court can, by mere adjudication, convert that into contempt, which is not of such nature and character in contemplation of law, any more than it can, by an adjudication, make a crime of facts which, in themselves, are innocent, or insufficient in law to constitute a crime. But when the court has the jurisdiction to determine what is a contempt, or the facts constituting a crime, the error of adjudication does not render the judgment void, or subject to collateral impeachment. In Crosby’s Case, he was imprisoned for contempt by the House of Commons. Upon return of the writ of habeas corpus, the causes of contempt were set forth ; and of other grounds on which a discharge was claimed, it was insisted the causes assigned were insufficient. But the whole court were of opinion, that they were without power to revise the adjudication of the House of Commons. The City Court assuredly had jurisdiction to determine, whether a contempt of its authority had been committed by the relator; in the judgment rendered, it was not usurping or exceeding its jurisdiction ; and if the facts recited in the process do not constitute a contempt, the court has merely erred in its judgment of the law applicable to the facts.

That a writ of habeas corpus is not an appropriate remedy to examine into the sufficiency of a commitment for contempt by a court of competent jurisdiction, and, if granted, that no inquiry will be made into the causes of contempt which are assigned in the commitment, is the principle distinctly announced, and supported by numerous authorities cited in the opinion of the court in State v. Towle, 42 N. H. 540. If it be that the imprisonment of the relator is in violation of the constitutional interdiction of imprisonment for debt, the imprisonment is, nevertheless, uuder the decree and process of a court which had the jurisdiction to decide that very question, and has decided it. If there be error in the decision, the remedy for its correction is not by habeas corpus. Passmore Williamson’s Case, supra; Ex parte Kearney, 7 Wheat. 38; Ex parte McCullough, 35 Cal. 97. These views, if they prevailed, would be decisive of the case, and there would be impropriety in passing to the consideration of other questions. The argument of counsel has proceeded upon the hypothesis, which the court bas assumed, and made the basis of decision, that the attachment is founded on a decree rendered on a creditor’s bill, filed in pursuance of the statute, forming § § 3887-89 of the Code of 1876. It is, of consequence, necessary to consider the case in this view.

This statute authorizes a judgment creditor, who has exhausted legal remedies, his assignee, or personal representa-five, to file a bill in chancery in the district of the residence of the defendant, or in the district in which judgment was rendered, for a discovery of property, money, or effects liable to the payment of the debt. A general averment in the bill, that the defendant has such property, money, or effects, is made sufficient; and the defendant is required to answer, on oath, what property he may have, the nature thereof, in whose hands it is, and where situated. If it appears to the court from the answer of the defendant, or from other evidence, that he has money, property, or other effects, subject to the payment of debts, in or out of the State, a decreo must be rendered, requiring him, within a specified time, to deliver the same to the register, and in term time, or vacation, all necessary orders may be made for the collection and recovery of such money or effects, If the defendant fails to comply with the decree, upon the report of the fact of failure by the register, he may be imprisoned until He obeys.

I am not able to concur in the severe arraignment to which the court subjects this statute, nor in its repeated denunciation, as “ a new legislative creation to accomplish, by evasion, an unlawful of unconstitutional end,” or as reviving or reestablishing imprisonment for debt, “under the guise of a new form.” The whole purpose of the statute is the subjection of the property, money, or effects of a debtor, which an execution at law has failed to reach, and which is liable to the payment of debts. If it be not, in all its purposes and its remedies, distinguished from imprisonment for debt, as it was ever known or practiced, I have misunderstood and misread the common law, and the statutes which authorized and regulated such imprisonment. It is said, in the opinion of the court: “ If this law in question is permitted to stand, a result rather startling, of necessity, must follow. A new and unexplored field of jurisdiction is extended to courts of chancery, not heretofore opened to them. The old power to imprison for debt is re-established under the guise of a new form. All legislative safeguards against its improvident abuse will have been swept away. No oath is required to any tangible act of fraud by the debtor. No security for costs is required. No method is provided for the rendition of the debtor’s schedule of effects, nor for settling his claim of exemption. The valuable privilege of bail is denied him, and he is deprived of the right of trial by jury.”

The respect in which the statute is supposed to open to the courts of chancery “a new and unexplored field of jurisdiction,” is not distinctly stated — whether it is in the power to compel the debtor to discover and deliver assets subject to the payment of debts, or in employing process of attachment for contempt against his person, to compel him to yield obedience to the decree, so far as it orders him to deliver such assets when discovered. If this statute is not, as I conceive it, a mere regulation of a pre-existing jurisdiction of a court of equity, strictly remedial, and intended to render the jurisdiction more efficacious, I can not say, it is without the scope of legislative power, to extend the jurisdiction of a court, either of law or equity, to “ new and unexplored fields.” Such an extension, if we admeasure our judicial system by other standards than such as are of legislative creation, and of judicial recognition in all the growth of the system, is not a novelty, or offensive to the limitation of legislative power. That the statute is simply a regulation of a well established and well defined jurisdiction of a court of equity, and authorizes the court to employ, in the administration of the jurisdiction, the ordinary remedy employed to enforce its decrees, is a proposition I shall hereafter maintain. The legislative safeguards against the improvident abuse of the jurisdiction the statute is supposed to confer, or of the remedy it authorizes, which, it seems, ought to have been provided, are an oath to a tangible act of fraud by the debtor, and security for the costs of suit. These, it is admitted, are legislative safeguards; and, of course, it rests within the wisdom of the legislature_ to require or dispense with them. It is not an objection, which can be of judicial consideration, to a statute establishing or regulating the jurisdiction of courts, or judicial proceedings, that such safeguards are,- or are not required. As a matter of judicial history, it may not be amiss to observe, that until 1827, plaintiffs suing out bailable process at law were not required to give security for costs ; and that it was not until 1828, that a plaintiff suing out such process, in an action founded on a bill, bond, or note, was required to make any affidavit whatever ; and the oath then required was simply of the amount, that it could be known, with some degree of certainty, for what sum bail should be taken, and a disclaimer of all purpose to vex or harrass the defendant. Aik. Dig. 50-1, § § 3-7. In some judicial proceedings the statutes do require, at the time of their initiation, if extraordinary process is employed, that oaths shall be taken, averring the justness of the cause of action, and, in particular cases, that a necessity exists for the employment of the extraordinary process. All such oaths are ecc parte; and ex parte oaths have never met with judicial favor, nor has their multiplication been encouraged. It was long since said of them:. “They are traps- for men’s consciences, and have a tendency to lessen the reverence which ought everywhere- to prevail for that all-important and solemn obligation.” The frailty of the security against the abuse of judicial process which they afford, is shown by numerous eases of collateral actions coming to this court, in which they have been falsified, and because of their falsity, the party taking them mulcted^ in damages and costs. Against false imprisonment, against vexation, injustice, or oppression, this statute affords a higher and better security than would be afforded by such safeguards: There can be no imprisonment under it, until the court has ascertained that the debtor has money, property, or effects subject to the payment of his-debts, which for that purpose he ought to-deliver, and, of consequence, decrees the delivery. The ascertainment is not made, the decree is not rendered, until the debter has had full opportunity of contestation and defense. Human wisdom has-not, as yet, devised any greater security against wrong and injustice, than an investigation-before a judicial tribunal, where each party has equal right and opportunity of being heard. Even after the decree for the delivery of the property or effects, the debtor can not b© imprisoned, until he disobeys the decree, — until, by his oavu contumacy, he defies, and places himself in contempt of the authority of the court; and the imprisonment can continue only so long as he remains in contempt; obedience to the-decree, a delivery of the property, will terminate it at any time. He is his own keeper, carrying the key of his prison, if not in his pocket, in the mere exercise of his own will.

It seems to me scarcely just or proper to say of the statute, that “no method ¡¡^provided for the rendition of the debtor’s-schedule or effects, nor for settling his claim of exemptions.”' The delivery of his effects, for the payment of his debts, is the whole purpose of the statute; and if it is made, the debtor can never be imprisoned; and he is imprisoned simply and wholly because he will not render his effects in payment of his debts. Nor is the claim of the debtor to exemptions embarrassed or imperiled. It is only property, money, or effects subject to the payment of debts, which he is required to deliver. If not subject — if exempt by law — the statute does not extend to them, and of them he can not be required to make delivery. Nor is it true, that the statute deprives the debtor of the valuable privilege of bail, as it was- ever conferred either by the statute, or by the common law. When a defendant was arrested on a capias ad respondendum, originally the leading process in civil actions in this State, he was permitted to find bail for his appearance to answer, and to abide the judgment; but bail could never be given, where he was arrested upon final process, or on process of attachment for contempt, an execution of itself. Nor is a trial by jury denied him, further than it may be said to be denied in all cases in equity. The statute seems to me free from all just judicial objection, intended to secure creditors in their just rights, and founded in the policy, traceable in much of our litigation, to render the jurisdiction and remedies of courts of equity more beneficial’ and more adequate to the protection of creditors against the frauds of debtors, actual or constructive. It abridges no right of the debtor ; it does not place him in a “worse position under the present constitution, with its general prohibition that ‘no person shall be imprisoned for debt,’ than he was under the former constitution.” Under the statute, there is not, and can never be imprisonment for debt. Through all time, a debtor may remain delinquent, and in default in payment of his debts ; all legal remedies against his property may be exhausted; this statute does not subject him to imprisonment. But when, by a regular course of judicial proceeding to which he must be a party, and have full opportunity of being heard, it is ascertained that he has money, property, or effects, subject to the payment of his debts, it will be conceded, there rests upon him a moral and legal duty to appropriate such money, property, or effects, to the satisfaction of his creditors. The legal duty springs from the principle of the common law, this court has most rigorously enforced, even to the disappointment of the expressed will of the donors of property, — that no man can or shall have a legal or equitable right to property which is not, in the absence of statutory or constitutional exemptions, subject to the payment of his debts. It is the performance of this duty the statute is intended to enforce; and it is only when it is judicially ascertained that the debtor has money, property, or effects, liable to the payment of debts, and is of ability to perform the duty, and he refuses performance, after being afforded the opportunity, that he can be imprisoned. Then, the imprisonment is not for debt, hut for the neglect and refusal to perform a moral and legal duty, performance resting in Ms ability.

The whole scope of the statute, as is evident from its most casual reading, is to authorize creditors, who have exhausted remedies at law, to resort to a court of equity for the discovery of property subject to the payment of their debts; and when discovered, its subjection- for that purpose by the decree and process- of the court. With all deference for the opinion of the court, I can not say, this is “a new and unexplored field of jurisdiction extended to courts of chancery, not heretofore opened to them.” When the principié-is established, that every species of property, legal or equitable, tangible or intangible-, in- which a debtor has a beneficial right or interest, not exempt by law, is bound for, and may be reached and applied to the satisfaction of his debts ; if legal remedies fail, as they are indisputably shown to have failed,, when there is a judgment at law, followed by a fruitless return of the process for its execution, the power of a court of equity must be perfectly adequate to carry the principle- into effect, unless with humiliation we confess, that there are legal and equitable wrongs, for which there is n.o> remedy.—Edmeston v. Lyde, 1 Paige, 637.

Since the opinion of Lord Thublow, in Dundas v. Dutens (1 Vesey, Jr, 196), there has been, in England, some contrariety of opinion, whether the jurisdiction of a court of equity to reach and subject property of debtors, at the instance of creditors who- have exhausted legal remedies, was not dependent on the character of the property, — whether it extended to- any other property than such as was Subject to execution at law; and it seems to have been settled, that, in the absence of statutes, enlarging the jurisdiction, it was-only property subject to execution which could be reached.—1 Story’s Eq. Jur. § 367. Ch. Kent, however, asserted in Bayard v. Hoffman, (4 John. Ch. 450); McDermutt v. Strong, (Ib. 687); Spader v. Davis, (6 Ib. 280.), the contrary doctrine; maintaining that according to the antecedent and better authorities in the English Court of Chancery, the remedial justice of the cqurt extended to every species of property, in which the debtor had a beneficial interest; for, otherwise, the debtor could convert all bis visible, tangible property, all which was subject to execution, into stocks, choses in action, or other intangible property, “in defiance of bis creditors, and to the utter subversion of justice.” So far from tbe jurisdiction of the court in this respect being new and unexplored, he remarks in Bayard v. Hoffman, supra: “Indeed, ibis power in the court to aid the creditor at law in his execution against property not ordinarily within its reach, seems to have been the received and unquestioned doctrine in tbe time of Lord Hardwicke.”

In Public Works v. Columbia College, (17 Wallace, 530), says Justice Field: “The jurisdiction of a court of equity to reach the property of a debtor, justly applicable to tbe payment of bis debts, even when there is no specific lien on tbe property, is undoubted. It is a very ancient jurisdiction, but for its exercise the debt must be clear and undisputed, and there must exist some special circumstances requiring the interposition of the court to obtain possession of, and apply the property.'” The views of Ch. Kent were dissented from in Donovan v. Finn, (1 Hopk. 59); but they were adopted and sustained by the Court of Errors, after an exhaustive review of the English cases, in Hadden v. Spader, (20 John. 554); and later, they were maintained in Edmeston v. Lyde, (1 Paige 637), and numerous cases, by Ch. Walworth. “Since these decisions,” observes the Supreme Court of New Hampshire, “the law has been considered settled in this country in favor of this equitable jurisdiction.” Bay State Iron Co. v. Goodall, 39 N. H. 223. In Tennessee, the doctrine as asserted by Ch. Kent, does not seem to have been adopted, and statutes have been enacted affirmatory of it; and this may be true, possibly, of some other of the States.-Creswell v. Smith, 2 Tenn. Ch. 416. The weight of authority, however, is that independently of statutory provisions, a court of equity, in aid of judgment creditors, who have exhausted legal remedies, will intervene to compel á discovery •of property, legal or equitable, and subject property not liable to, or which the execution at law has not reached.—Bump on Fraud. Conv. 264, 540; Wright v. Petrie, 1 Sm. & Mar. Ch. (Miss.) 282; Miers v. Z. & M. T. Co., 11 Ohio, 274; Cadwallader v. G. A. Society, Ib. 292; Gordon v. Lowell, 21 Me. 257; Sargent v. Salmond 27 Ib. 539; Bigelow v. C. S. of Middletown, 11 Vermont, 283; Waterman v. Cochran, 12 Ib. 699; Tappan v. Evans, 11 N. H. 311; Treadwell v. Brown, 44 Ib. 551. Statutes in regulation or enlargement of the remedy have not raised a presumption, that the jurisdiction was not pre-existing, or been construed as conferring any new jurisdiction.—Chase v. Searles, 45 N. H. 511; Child v. Brace, 4 Paige, 309; Dunlevy v. Tallmadge, 32 N. Y. 457.

Nor can I coneur in the opinion, that the statute, so far as it authorizes the court to compel obedience to its decree by process of attachment against the person of the disobedient debtor, “is a clear and sweeping innovation upon established equity jurisdiction.” The converse of this proposition seems to me true. As we have seen, that process was originally the only remedy employed by a court of equity to enforce its decrees, and it is expressly preserved by the general statutes relating to equitable remedies. The court could have employed it, if the statute under consideration had been silent as to the remedy which must be pursued. Without its employment, it would often be vain and idle to render a decree that a debtor, who has been found to have money, United States bonds, State bonds, or other property of like kind, subject to the demands of his creditors, should deliver it for their payment. The statute does not, as I read and understand it, confer on a court of equity jurisdiction “to compel the payment of an ordinary money demand,” and “the power to compel such payment by punishing the refusal to pay under the guise of a contempt.” It is difficult to conceive upon what ground such a view of the statute can be taken. The debt is established by the judgment at law; it is not contemplated, nor is it necessary, that the court shall render any decree for its payment, and it would be as proper to say, that whenever a court of equity intervenes to set aside a fraudulent conveyance, an obstacle to the enforcement of an execution at law, it is taking jurisdiction “to compel the payment of an ordinary money demand,” as to say that such is the character of the, jurisdiction the court exercises in pursuance of this statute. One of the controlling reasons that a' court of equity refuses to intervene at the instance of a simple contract creditor (if a statute does not authorize intervention), to avoid fraudulent conveyances, is the want of jurisdiction to render a decree for the debt. That which becomes a contempt, according to the words and meaning of the statute, is not, the failure or refusal to pay the debt. In default of payment the debtor may continue, from poverty and misfortune, or from a wanton dereliction of duty, and he would not stand in contempt, or in peril of imprisonment. The contempt for which imprisonment may follow, is committed only when the court has ascertained, after he has had full opportunity of being heard, that he has money, property, or effects liable for the payment of his debts, which he refuses to deliver for that purpose. It is disobedience to a decree he has the ability to obey, which constitutes the contempt, as essentially as if he had been ordered to deliver the same property to a receiver, when its title may be in question, and not the mere non-payment of a debt.

In my judgment, the statute is introductiva of no.other changes in the law, than authorizing the bill to be filed, at the election of the creditor, in the county in which the judgment may have been obtained, or in the county of the defendant’s residence. The generality of averment in the bill, declared sufficient, it may be, is also a change in the pre-exist-ing law. It is a fact not without its significance, that in many, if not all of the States, such fishing or inqv.isitorial bills, or like proceedings, intended to compel a discovery of all a debtor’s property, and often a disclosure of all his dealings and transactions in reference to it, have been authorized by statutes quickly succeeding the abolition of imprison-meat for debt. It was not until February 1st, 1839, that imprisonment for debt, except in cases of fraud, specified in the statute, was abolished in this State.—Meek’s Supp. 105; Clay’s Dig. 70, § 1. The jurisdiction of a court of equity to aid a judgment creditor who had exhausted legal remedies, to subject the equitable estate of the debtor, or any interests which could not be reached at law, had been long recognized. In January, 1844, the first statute was enacted, which now forms §§ 3882-85 of the Code of 1876, dispensing with the particularity of allegation necessary according to the rules of equity pleading in creditors’ bills, and requiring upon mere general averments, that the debtor, or any other person made a defendant, should discover all property, money, or things in action belonging to him, or held in trust for him. The purpose of this statute, it was said in Brown v. Bates, 10 Ala. 432, was to afford a more searching and efficacious remedy.

The whole theory and policy of such legislation, and the necessity for it, are very well stated in 2 Barbour’s Chancery Practice (2d Ed.), 149: “ After the right to coerce the debtor by imprisonment of his body was abolished, something of the kind was necessary; otherwise, by placing his property beyond the reach of an execution at law, a debtor might set his creditor at defiance. While it is the policy of the non-imprisoument act, therefore, to relieve the unfortunate debtor from imprisonment, it is the design of the statute authorizing creditors’ bills to compel him to surrender all his property and effects, equitable and legal, or so much thereof as is necessary to satisfy the just claims of his creditors, and the court of ehaneery will not permit him, by any shift or device, to place his property beyond their reach ; but will, upon a creditor’s bill filed against him, assist the creditor to reach the debtor’s property not otherwise available, and apply it to the payment of his debt.”

Imprisonment for debt, as is said in the opinion of the court, was unknown to the ancient common law. There were reasons growing out of the feudal system, and the relation of lord and feudatory, the system favored, to which it would have been as repugnant as the subjection of lands to the payment of debts. It was, however, introduced by various acts of Parliament, antecedent to the immigration to, and colonization of this country. It is an underlying principle of the jurisprudence of the States of this Union deriving existence from English charters, or grants and colonization, that the common law furnishes the basis of their jurisprudence ; and of that common law, acts of Parliament enacted before the immigration, adapted to their situation, and not inconsistent with the government and institutions they may have ordained, form a part.—Barlow v. Lambert, 28 Ala. 704; Horton v. Sledge, 29 Ala. 478; Carter v. Balfour, 19 Ala. 814. Imprisonment for debt, as a mere civil remedy, to which a creditor was entitled through a capias ad respon-dendum, a leading and original process in civil actions in courts of common law, requiring the sheriff to take and keep the body of the defendant, so that he would appear, answer the plaintiff’s plaint, or declaration, and abide judgment, was adopted very extensively, if not universally, under’ the colonial governments, in actions of account, assumpsit, covenant, debt, and case, the common law actions ex contractu. Subsequent legislation on the subject was in modification or regulation of a practice already existing; and it has been said, that often “ the very laws authorizing the arrest are not to be found, except by implication from those modifying and regulating the practice.”—2 Amer. Ency. Title Capias, 497. The capias ad satisfaciendum, the writ issuing after judgment, commanding the sheriff to arrest the defendant, and commit him to jail until he paid the judgment, or was discharged by law, was not originally given by statute; it was an invention of the courts, upon the theory, that in every case in which a capias ad respondendum could issue, the plaintiff was. after judgment, entitled to execution against the body of the defendant.—Freeman on Ex. § 451. The first of our statutes touching the subject was enacted in 1807, five years after organized government was established; during which period there can be no room for doubt, that imprisonment for debt prevailed, as it was known and practiced in the English courts. The act of 1807 authorized the plaintiff to require bail as of course, when the action was founded on any specialty, bill, or note in writing signed by the defendant, or on the judgment of any court, foreign or domestic. In all actions of account, covenant broken, and actions founded on verbal contracts, and assumpsit in law, in which the sum due, or damages sustained, was shown by the affidavit of the plaintiff, or other credible person, bail could be required for the amount shown by the affidavit. — Laws of Ala. 28. This statute remained of force, without any change material now to notice, until December 9; 1823, more than five years after the adoption of the constitution of 1819, when it was changed so as to require that, in actions founded on any bill, bond, note, or account, the defendant should not beheld to bail, unless the plaintiff, his agent, or attorney, made oath of the amount due, and that bail was not required for the purpose of vexing or harassing the defendant.—Aik. Dig. 50, § 1. This act remained of force until February 1st, 1839, when imprisonment for debt was abolished, except in cases of fraud prescribed in the statute then enacted.

The constitution of 1819 declared: “ The person of a debtor, where there is not strong presumption of fraud, shall not be detained in prison after delivering up his estate for the benefit of his creditors in such manner as shall be prescribed by law.” The constitution simply embodied in a single sentence the substance of the territorial legislation at the time it was framed, which, with changes and modifications rather as to matters of detail and procedure, than otherwise, continued of force, and was embodied in the Bevised Code of 1867; by which a debtor, arrested on civil process, mesne or final, if he were not guilty of fraud, could obtain his release from imprisonment, on surrendering his estate for the benefit of creditors. It is quite an error to suppose, that the constitution of 1819 prohibited imprisonment for debt, except in cases of fraud. The constitution was never so construed judicially, or by legislative authority. It did not prohibit imprisonment for debt. It did not limit or confine it to cases of fraud. The debtor could be imprisoned ; but his detention was prohibited after he delivered up his estate for the benefit of his creditors, in such manner as was prescribed by law, unless there was a strong presumption of fraud. Before' delivering up his estate for the benefit of his creditors, the constitution extended no protection, — gave no guaranty to the debtor. After such delivery the protection and guaranty against detention were conditional, — dependent upon the absence of a strong presumption of fraud. This was the legislative interpretation of the constitution, sanctioned by the acquiescence of this court in a long course of decisions, commencing with Allen v. White (Minor, 289), and coming down to Kenan v. Oarr (10 Ala. 867), in which were involved the statutes authorizing imprisonment for debt, on process, mesne or final, no fraud being imputed to the defendant, all the imputation resting'upon him being default in payment of the debt; and it was never suggested that the statutes were violative of the constitution, or that there was a general constitutional prohibition of imprisonment for debt, except in cases of fraud. The fact is, that exception to a general prohibition of imprisonment for debt, like the prohibition itself, was introduced by the statute of February 1, 1839. It was within the competency and possibility of legislative power, under that constitution, to abolish entirely imprisonment for debt, not even excepting cases of fraud, or to leave it as it was at common law, a remedy to which parties could resort of course, and as matter of choice. The constitution was satisfied, if this imprisonment was not continued after the debtor, in the manner prescribed by law, made delivery of bis estate for the benefit of his creditors. Even then, satisfying its demands, the detention could be continued, if there was strong presumption of fraud. The court, it is manifest, has fallen into error, shown by legislative and judicial decision, in the proposition, repeated in varying form, and which seems to have been of influence in the conclusions reached, “ that from 1819 to 1868, a period of nearly fifty years, this method of duress in civil actions exceptin the matter of preliminary bail, was permitted in this State only in cases of fraud, and the debtor was then forbidden to be detained in prison after delivering up his estate for the benefit of creditors, in such manner as shall be prescribed by law.” It was not with any such view of the prior constitutions, that the present constitutional provision “ that no person shall be imprisoned for debt,” was introduced into the organic law. But it was with the knowledge that imprisonment for debt was a civil remedy in courts of law, existing by the common law which would prevail and be of force in the absence of constitutional or statutory limitations or prohibitions ; that under the prior constitutions it had existed, as at common law, as of course, and it was within the power of the legislature at any time to restore it; that former constitutions had not abrogated it; that they were [not directed against it, but against the detention in prison, a I detention which must, of course, have succeeded arrest and 'commitment. Imprisonment for debt, like a preliminary attachment of property, was merely a part of the procedure to obtain satisfaction. It was not a part of the essential remedial right; without infringing the rights of creditors, without impairing the obligation of contracts, legislative power could modify, or take it away. Under no other than the process of courts of law having exclusive jurisdiction of debts, of the contracts it was. intended to enforce, was it at or prior to the adoption of the constitution capable of being imposed. There was in it, at best, much of harshness and cruelty ; and it was visited alike on the unfortunate and honest, and on the unjust, fraudulent debtor. Inability to pay the debt could not relieve from the imprisonment; its continuance depended on the mere will of the creditor ; and the court had no greater power to restrain him in the use of the remedy by which it was imposed, than they had in the use of process directed only against property. There was but a brief period in which, in all its harshness and rigor, it ever existed in this State. Amelioration of the laws authorizing it, here and elsewhere, has been gradual; and now, I believe, it is abolished in England and all the States. The abolition in the States, is either by statutes, ór by constitutional inhibition; sometimes accompanied with an exception of fraud in contracting the debt, or fraudulent attempts to evade payment. The effect of the exception is not of consideration now. I am strongly inclined to the opinion, that it is mere matter of legislative caution; and that, however general may be the terms in which the abrogation of imprisonment for debt may be expressed, legislative power to afford creditors ample remedies against the frauds of debtors, or to punish such frauds as crimes, would not be thereby circumscribed. The debt is one thing, a due from the debtor to the creditor; the fraud of the debtor, whether it is perpetrated in contracting the debt, or, subsequently, in shift or device to elude payment, is another, and essentially a different thing. Imprisonment for the fraud would not, in any just sense, be imprisonment for debt, but for a violation of good faith, of moral and legal duty. Whether the fraud shall furnish the creditor a remedy against the person of the debtor, or shall be punished as a crime, rests in legislative wisdom. • There is much of conflict of opinion, which is the wiser legislative policy; but none, so far as I know, as to legislative power. We have statutes punishing as criminal offences some frauds on creditors ; but it is unfortunately too true, that they are more often resorted to for subserving private interests, than vindicating public justice.

The evil, the mischief of imprisonment for debt consisted in the power the creditor had over the person and liberty of the debtor; a power capable of w’anton, reckless abuse. In the very nature of things, a debtor ought to be subjected only to a loss of property for the payment of debts. Property only, not the liberty of the debtor, is the source to which the creditor looks for payment; and it contributes to the satisfaction of the creditor, while restraint of the person of the debtor is, in that respect, barren and unproductive. It is this evil, this mischief, the constitution is intended to correct and remove, and to prohibit its restoration by legislative enactment. A fair and reasonable construction the constitution demands, and should receive, that its beneficial purposes may be accomplished. But it does not seem to me, that, by any just construction, it can be regarded as converting that into imprisonment for debt which was known in the law at and prior to its adoption, and had never been so esteemed or regarded. On the contrary, it refers to a thing well known, and on that alone it operates. In all constitutions, State and Federal, the right of trial by jury is secured, by guaranties expressed in language broad and general. All such guaranties have been uniformly construed as merely preservative of the right of trial by jury as it existed at common law; they have not been construed as extending the right; nor have they ever been taken and read in a vague, loose sense, excluding or affecting the jurisdiction of courts known to the common law, of which the jury was not a constituent, and in which there was not a trial by jury; nor yet have they been read as prohibitory of legislative power to authorize new tribunals, without common-law powers, to proceed without a jury. The same rule and principle of construction must be applied to the clause of the constitution under consideration. All State constitutions, or statutes must be read, understood and construed in the light, and by the assistance ■ of the common law; and the fact must be kept in view', that the rules and principles of the common law, so far as not repugnant to, or inconsistent with the constitution or statute, remain of full force. — Cooley’s Const. Lim. 61; 1 Kent, 464. Imprisonment for disobedience to the orders, rules, or decrees of the Court of Chancery, -was coeval with the organization of the court in this State ; and the process by which it was effected has been recognized and preserved by legislation. It has nothing in common with imprisonment for debt, and its continuance depends solely on the act and conduct of the party imprisoned. It may be terminated by simple obedience; or by satisfying the court that obedience does not rest within the ability of the party.

I am not aware that constitutional provisions, or statutes, abolishing imprisonment for debt, have ever been construed as extending to, or abridging the' remedies of a court of equity. The process of the court partaking more largely of the nature and character, and more nearly approximating the process by which imprisonment for debt was imposed, is the writ of ne exeat. The very purpose of the writ is to obtain equitable bail; and though it may issue to hold a party answerable for a debt, the authorities generally hold that statutory or constitutional provisions, abolishing imprisonment for debt, are not to be extended to it.—Brown v. Haff, 5 Paige, 235; Rice v. Hale, 5 Cush. 238. The constitution of Wisconsin declares, that “no person shall be imprisoned for debt arising out of, or founded on a contract, express or implied.” In Dean v. Smith (23 Wisc. 483), it is said : “A writ of ne exeat is not imprisonment for debt, within the intent and spirit of this provision of the constitution. It is said by the authorities to be in the nature of equitable bail, and issued only by the special order of the court, when the party against whom it is asked is about to leave the jurisdiction of the court, so that the decree of the court will be ineffectual. And this, as it appears to us, is the true nature and character of tbe writ of ne exeat. It prevents a person from going out of tbe State until he shall give security for his appearance, and is not imprisonment for debt, within the proper meaning and sense of these words.”

Attachments for disobedience to an order or a decree of a court, requiring the performance of ah act for the benefit of a party, have repeatedly been assailed, as violations of consti-tional and statutory provisions abolishing imprisonment for debt; and they -have been as frequently sustained, and declared not to fall within the influence of such provisions. The case of Ex parte Grace (12 Iowa, 208), referred to by the court, I do not understand as affecting any question now presented. The court does not in its opinion in that case treat the imprisonment under the process issuing against the relator as imprisonment for debt, but pronounces the statute, under which the proceedings were had, offensive to a peculiar provision of the constitution of the State, in reference to trial by jury, said to have been introduced into the constitution to secure fugitive slaves the right to such trial. The decision itself, in the words of Mr. Pomeroy, the recent annotator of Sedgwick on Stat. & Const. Law (490), is probably exceptional.

The particular question now under consideration has been decided in Minnesota. The constitution of the State declares, that “no person shall be imprisoned for debt in this State ; but this shall not prevent the legislature from providing for imprisonment, or holding to bail persons guilty of fraud in contracting such debt.” The statutes authorize proceedings supplementary to execution, by which, it seems, the defendant may be required to deliver his property to a receiver, to be applied to the payment of the judgment; and if he disobeys the order, further dechvres that he may be imprisoned for contempt. In State v. Bechts (23 Minn. 411), it was insisted the statute was violative of the constitution. The court said : “The imprisonment is for contempt in refusing to obey an order of the court. It is true, the order relates to the debt evidenced by the judgment against the relator, but this in no way alters the fact, that the imprisonment is for the contempt, not for the debt. And the contempt does not consist in the relator’s neglect or refusal to pay the debt, but in his disobedience of the order directing him to hand over certain property to the receiver. The fact that the property in question is to be handed over for the purpose of being applied to the payment of the judgment, is in no way important. The commitment is, nevertheless, in no proper sense imprisonment for debt.”

In Remley v. De Wall (41 Ga. 446), a bill had been filed for a dissolution of a partnership and a settlement of the partnership accounts. It was ascertained that Remley had a sum of money in his hands, which he was ordered to pay DeWall. Failing to obey the order, Remley was attached and imprisoned ; and it was insisted the imprisonment was in conflict with the constitutional inhibition against imprisonment for debt. The court said : “In our view of this case, Remley does not stand in the place of a debtor. The order and decree against bim was for the performance of a duty, arising out of the dissolution of the partnership, under orders of the court.”

. If we do not intermingle things which are essentially distinct and different, — if we do not confound imprisonment for wrong with imprisonment for debt — it seems to me this matter is free from difficulty. It is impossible to pronounce, that the relator is imprisoned for default in the payment of the judgments. That default has not caused the imprisonment. If he had obeyed the decree, — if he had delivered the bonds ascertained to be in his possession, subject to the payment of the judgments — there could have been no contempt of the court, and do imprisonment. I do not say that, if a court of equity should render a simple decree for the payment of money — a decree which it may now enforce by the ordinary common-law process against property — that it would be proper to adjudge the failure to pay the decree a contempt, and resort to compulsory process against the person of th6 party in default to enforce payment. ' That question is not now involved. But when a party is decreed to perform a duty, or to do any act, other than the mere payment of money, which the court has jurisdiction to adjudge he shall do, if he disobeys, the authority of the court is defied, — he is guilty of contempt, and the arrest and imprisonment of his person is not imprisonment for debt in any appropriate sense of the term. This is very clearly shown in the opinion of the court in Coughlin v. Ehlert (39 Mo. 285). “ We do not mean to say,” are the words of the court, “that a party may not be put in contempt for disobeying a decree for the performance of acts which are within his power, and which the court may properly order to be done. If it were shown, for instance, that the party had in his possession a certain specific sum of money, or other things, which he refused to deliver up under the order of the court, for any purpose, it may very well be, that his disobedience would be a contempt, for which he might-lawfully be imprisoned.” See also Carlton v. Carlton, 44 Ga. 216.

Some stress seems to be laid upon the omission from the Code of 1876 of all laws found in former Codes, authorizing ’ imprisonment for debt. It is said, this is “ an emphatic legislative affirmation of tbe fact, that the whole system of imprisonment ‘for debt’ with its machinery of duress, had been abolished and sw'ept away by the constitutions of 1868 and 1875.” This may be conceded. There is, and can be no controversy, that by these constitutions imprisonment for debt has been abolished ; and it may well be doubted, whether any enlightened citizen objected to the abolition, or desires its restoration. But if the omission from the Code of the laws i-eferred to is a legislative affirmation of that fact, is not the re-enactment of the statute under considei’ation, and of the statute authorizing courts of equity to enforce orders, rules and decrees, by process of attachment, a more emphatic affirmation, that these statutes are not in any respect viola-tive of the constitution, and form no part of the “ system of imprisonment for debt, with its machinery of duress?” The omission is negative — the re-enactment is positive.

If the broad construction now given the constitution shall be followed to its logical consequences, results will flow from it, which it is scarcely possible to believe could have been intended by any body of men who ever assembled to frame organic laws for the State. A State insolvent law may become a necessity, if the Congress shall not enact a general bankrupt law. In such laws it is usual to intx*oduce provisions identical with the provisions' found in this statute, by which a debtor who refuses to surrender his property for the payment of his debts, may be compelled to do so by imprisonment. If the doctrine of the opinion of the court is correct, such provisions would violate the constitution. Other consequences, it seems to me, must follow', which will prove detrimental alike to debtor and creditor.

It was the wise and humane purpose of the framers of the constitution, to free the person and liberty of the debtor from subjection to the mere will and caprice of the creditor ; from his severity or recklessness; and to prevent such subjection from the possibility of restoration by legislative enactment. It was not intended to lessen the liability of the property of the debtor to the payment of debts, or to narrow the remedies to reach and appropriate it to that end. It is not to be presumed, that constitutional or statutory provisions are intended to deprive creditors of their just claims and rights, or to deny to them appropriate remedies to reach and subject all property, tangible or intangible, chargeable with the payment of their debts. Certainly, the words of a statute, or of a constitution should be clear and unambiguous, before any interpretation or construction is given them, which encourages debtors to secrete their property, or convert it into a species which they can retain and enjoy in defiance of judicial power, and to the hindrance and disappointment of creditors.

Assuming the case to be of the character the court has assumed, it has been, in a regular course of judicial proceedings, to which the relator was a party, ascertained that he has fifty-one thousand dollars of United States bonds, subject to the payment of his debts. The City Court decreed, that he should deliver so many of the bonds as would pay the judgments against him, not amounting to one thousand dollars. Of the decree he had full notice, and ample opportunity to make the delivery was afforded. Ho refused to obey the decree; and for the refusal he was arrested and imprisoned. On habeas corpus he is now discharged, retaining the bonds ; and his creditors are informed, that the constitution forbids the enactment or execution of any law by which they can obtain from the large fund in the possession of their debtor the comparatively insignificant sums due them. I can not believe this is the law and justice of Alabama.

Case Details

Case Name: Ex parte Hardy

Court Name: Supreme Court of Alabama

Date Published: Dec 15, 1880

Citation: 68 Ala. 303

Court Abbreviation: Ala.