Lead Opinion
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
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
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,
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,
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,
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.
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,
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
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
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
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
The case of Wightman v. Wightman,
In Ex parte Grace,
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-
"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,
_ 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
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,
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
Dissenting Opinion
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
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,
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,
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,
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 (
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,
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,
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 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
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,
Looking alone to the process, the writ of • attachment re
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
In Ex parte Cohen (
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
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,
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
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
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 con
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
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,
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
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-
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
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 (
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
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,
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 (
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 (
In Remley v. De Wall (
. 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 (
Some stress seems to be laid upon the omission from the Code of 1876 of all laws found in former Codes, authorizing ’
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
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.