19 S.E. 597 | N.C. | 1894
The Constitution, Art. I, sec. 10, provides that there shall be no imprisonment for debt in this State except for fraud. Even in such cases the imprisonment is not perpetual, but the debtor can be discharged upon complying with the terms of chapter 27, Vol. II of the Code. One of those terms is taking the oath prescribed in section 2972, that the petitioner has "not the worth of fifty dollars in any worldly substance, in debts, money or otherwise whatsoever." This requires the surrender of homestead and personal property exemption, and, indeed, of all property of every kind in excess of fifty dollars. If this is not done the insolvent imprisoned in an action of fraud ex contractu
remains in prison. He has his choice. The Legislature permits the fraudulent debtor to be discharged only upon those terms. It lies in the legislative discretion to fix the terms upon which such imprisonment shall end. The statute formerly permitted an imprisoned insolvent (472) to retain his exemptions, as was held in S. v. Davis,
1. Before trial by giving bond or making deposit. The Code, sec. 298.
2. At the trial by the issue of fraud or allegations of tort being found in his favor. The Code, sec. 316.
3. After judgment against him by payment or giving notice and surrender of all property in excess of fifty dollars. The Code, sec. 2972. This can also be done before judgment.
Without going into the many particulars in which the defendant has failed to entitle himself to be discharged under chapter 27 of The Code as an insolvent, it is sufficient to point out that he has not filed the petition, nor given the notice required by that chapter, nor complied with the requirements of the oath exacted under section 2792, nor has the defendant entitled himself to be discharged upon a motion to vacate the order of arrest under section 316 of The Code as amended by Laws 1889, ch. 497. See Clark's Code (2 Ed.), sec. 316. Of course if on the trial the allegations which authorized the order of arrest and bail are found in favor of the defendant he would be discharged from the arrest, as he would likewise be before trial by giving bail or making deposit under section 298 of The Code. (474)
The order of arrest was improperly vacated, and an appeal lay, as such order "affected a substantial right claimed." The Code, sec. 548.
Reversed. *300
Cited: Lockhart v. Bear,