Frey v. Hebenstreit

Mar 15, 1842
Versions:1 Rob. 561
Martin, J.

Charles M. Conrad, and George Enstis, assignees of the judgment recovered by the plaintiffs in this case, are appellants from the discharge of a rule which'they had taken on M. S. Cuculhi-, bail of Francisco Lojero, one of the defendants, to show cause why judgment should not be rendered against him. Imprisonment for debt having been abolished by the legislature of the state, by the act of the 28th of March, 1840; p. 131, it has been frequently held by this court, that all bail not fixed with the debt at that period, were discharged. In the case of Cooper v. Hodge et al., 17 La., 476, we held that the bail was released although a capias was in the hands of the sheriff at the time of the passage of the law, upon the return of which non est inventus, the creditors sought to make the bail liable on the bond. In Borgsted & Co., v. Nolan et al., Ib., 593, we held that the bail could not be made liable, where no capias ad satisfaciendum had been issued before the passage of the law, as none could be issued afterwards ; and as it was only upon the return of such a writ, that proceedings could be had against the bail. In The Atchafalaya Bank v. Hozey, Ib., 509, we decided that the sheriff could not be .made liable for failing 'to return a capias ad satisfaciendum, if the writ was abolished before the return day. The appellants, however, have contended, that they are entitled to relief, under the act of the 10th of February, 1841, sec. 19, which provides, that ‘ for the purpose of fixing the security on bail bonds, the writ of capias ad satisfaciendum shall remain in force.’ As the appellee was discharged by the former act, it cannot be seriously asked of us to say that the latter act restores his responsibility. The execution of an obligation may be suspended, but the obligation itself cannot. If it cease to exist, it cannot be revived, except in the manner in which it was created. The judge a quo has held, that ‘the attempt to cloak the intention to restore the liability of the bail, by giving to the section of the act of 1841 the form of an interpretation, construction, or declaration of the meaning of the law, cannot avail; it would be a violation of the first principles of justice. The act of 1840 may justly be characterized as a freak of legislation* but as it is within their constitutional power, however contrary it may be to a just spirit of legislation or jurisprudence, it must be submitted to.’

To the correctness of the legal principles asserted by the judge *566a quo, we give our assent; but we do not concur in the reflection cast upon the legislature, for passing the act abolishing imprisonment for debt, in 1840.

The appellants have, rfioreover, contended, that they are entitled to judgment on the bond, on an assignment of a breach of one of its conditions, to wit, the debtor’s departure from the state without the leave of the court. This is modified by an article of the Code of Practice, which provides, that ‘ one who has become surety that another shall not depart from the state, orleave the jurisdiction of the court by which the order of surety was granted, may be discharged from ail responsibility, by surrendering to the sheriff the person of the debtor.’ Art. 230. In the case of Wakefield v. McKinnell, 9 La., 449, we held that the bail is discharged, when the surrender becomes impossible by the act of God, as by the death of the debtor. We must now hold as a corollary, that he is discharged when the surrender becomes vain and useless by the act of the law, as where, by an act of the legislature, the imprisonment for debt is prohibited. Lex neminem cogit ad vana seu im-possibilia. In the latter case, the bail is no longer bound to surrender the debtor, because the surrender would be vain, as the debtor could not be retained in custody. In the former, we held, that the bail was no longer bound to surrender, because the surrender had become impossible.

Judgment affirmed