Hening v. Nelson

20 Ga. 583 | Ga. | 1856

By the Court.

Benning, J.

delivering the opinion-

[I.] The Act of 1811, “to amend the thirty-first section of the Judiciary Act of 1799” contains this passage: “And when an execution against the body of any defendant shall Rave been served, the party on whom the same shall have been served, shall be released, provided he, she or they shall deliver to the officer serving the same, the property which shall, in the opinion of such officer, he sufficient to discharge the debt and all costs, and give sufficient security to the said officer that the property so delivered is Iona fide the property of the defendant or defendants, and subject to the discharge of the said debt.” (Cobb’s Big. 510.)

The Counsel for the plaintiff in error seemed to consider that the word “when” in this passage has the effect to restrict the exercise of the right given to the very point of time at which the arrest takes place. But we do not think so. The word is frequently used in the sense of if or whenever ; and it is'so used, we think, in this passage.

And therefore we think, that if this Act is to govern, it was the right of the defendant arrested to avail himself of the benefit of the Act at any time after the arrest.

And this Act is not at all repealed by the “ Act for the* xelief of honest debtors.”

How, then, can it be insisted, that giving a bond under tkat Act precludes the party giving it from his rights under tie other Act ? It is true that the bond given under that Act is conditioned for the appearance of the principal in it at Court, to abide by such proceedings as may be had by the Court in relation to his taking the benefit of the Act. But this condition does not chain him down to that single mode of getting rid of the ca. sa. to the exclusion of every other mode. May he not still get rid of the ca. sa. by paying the debt — by settling the case — by accepting a release — by showing the ca. sa. void, &c. ? Most certainly. So he may still get rid of the ca. sa. by-availing himself of the mode provided for relief from arrests, by the Act aforesaid of 1811.

We ought not to forget the words of the Constitution when we go to interpret the laws in relation to imprisonment for debt. “ The person of a debtor, when there is not strong presumption of fraud, shall not be detained in prison after delivering, bona fide, all his real and personal for the use of his. creditors, in such mannejf as shall hereafter be regulated by law.” *

The judgment is affirmed.