*1 3.18 Stidham DuBose S. C.
11445 v. DUBOSE STIDHAM E., (121 791) S. May Bail in All Held Arrested be
1. Arrest —Defendant Injury.; 442, 1922, § Code Proc. Civ. —Under Cases of Personal 6, the defendant in all cases of Subd. and held to bail. arrested Prohibiting 2. Constitutional Im- Provision Law —Constitutional Applicable Only prisonment Debts.— to Contractual for “Debt” “debt” prohibiting imprisonment provision The constitutional contractu, application no arising ex applies only to debts to obligations ex delicto. Clarendon, April, Before M. R. Special Bonham, Judge, 1923. Reversed and remanded. DuBose. Richard
Action E. S. Stidham under order of arrest issued Erom an order vacating 1912, appeals. Proc. the plaintiff Code Subd. Sec. Arrest Curtis, Mr. C. cites: Harold appellant, Proc. 2301; Code civil actions: Code Proc. Sec. Dist, 445; S., 236; 29 Pa. 442; 5. 52 Y. C. J., Sec. 652; Y., 220. Stukes, respondent,
Messrs. Dinkins & cite: Arrest in civil will tie simple E., action negligence: 89 S. Ct., E., 967; Pr, 93 33 5 Que. Sup. Que. S. 5 444. Attachment statute idea C. negatives arrest: J. C., C., 377; Stat. S. Construction 1145. must Cyc., favorable defend- Pa., 25; Pac., 767; Mich., ant: 108. New Fed., York too broad: rule 816.
March 1924. The of the Court was delivered opinion Mr. Justice Cothran. questions relating constitutionality Note —On A., A., 1915B, see notes in 34 L. R. 634 and L. R.
' highway, walking public while plaintiff automobile *2 injured
1 at was run down and an night, by He instituted the pres the defendant. operated by caused that the ent action damages, alleging injury he particulars; defendant in certain the of the by negligence or malicious that it caused did the willful allege the conduct defendant. of
At the time the of the action the plain- of commencement tiff out an the and pro- sued attachment automobile against the a the of the under cured warrant for arrest defendant Code, seq. the 442 et arrest and bail of Section provisions He to based his have the defendant arrested right (1922). n upon subdivision 6 that the of which provides Section be arrested “in-an action for the of defendant may recovery cause of action not out of contract a arising * * * * *” * action for an when the is to injury person. ' amade motion before The defendant was arrested and Bonham, special Hon. for an order M. Judge, discharg- him motion from arrest. The no specifies ing grounds. the the an dis- special Judge passed Upon hearing the barren defendant. His order is charging equally from exceptions but the plaintiff’s supporting grounds, no the been to the objection interposed argument, having order, form of the notice or assume that the we order was that the cannot upon based the be arrested ground an the civil of the in a action for plaintiff defendant; the must that there caused malice, some moral or involving allegation turpitude, willfulness, in so drastic justify complaint, proceed- from this of the the order appeal plaintiff ing; is involved. question alone discharge statute, the terms of it will found If consider we of the personal there characterization is no con- an of action arrest. the cause If justifying stituting is for whether inflicted injury, cause of action arrest; statute authorizes maliciously, or negligently n S. C. either. in its broad terms to cover certainly enough reason, There must be then some constitutional produced otherwise, or restrictive demanding application terms of the statute. comprehensive It has that the constitutional been suggested provi sion for debt is obstacle. imprisonment prohibiting however, this is the well-estab Against objection, lies lished constitutional inhibition principle contractu; ex debts no arising application delicto. As Berry, 'ex obligations the Court says E., 225; Cas., 20 Ann. 1344: “A few cases are to be found which doctrine the inhibition asserted that *3 fraud, in cases of to the civil liability
except applies torts; Constitution, but term as in the used 'debt/ held embrace weight obligations great authority contract, out of and to exclude for torts arising liability Holman, fines for crime. imposed E., Limitations, on Constitutional Cooley are The cases so numerous and will be found quite holding v. State, in Carr v. 634, note, A., State collated Brewer St., 760; Enc., Am. 16 Am. & (S. C.), Eng. 881.” Cyc, Walker, Ill., 541; E., 92, In 122 N. it is People said: for debt
“Our Constitution abolished imprisonment * * * * * * in cases of fraud. But or this except contracts, to actions prohibition applies express torts.” or and does extend to actions for implied, removed, can see objection That we no reason to being the manifest intent that all cases of legislative thwart tíre be arrested personal and held bail. subdivisions of explicit five are preceding Section the circumstances in the several instances declaring justi- arrest. Most of them instances of fraudu- present
fying v. DuBo.se 1924* had impose intended to lent conduct. If Legislature conditions of will- conditions to or such subdivision any it malice, turpitude, moral fulness, or gross negligence, could have done so. readily too, arrest is
It is that in subdivision per- significant, or taking, detaining “for or for wrongful mitted such condition that without imposing converting property” done with shall be or converting injury, taking, detaining, malice.
In it is said: 5 C. J., injuries “In recover an action to liable to to render the defendant is not necessary, willful; it arrest,, of should be that injury complained in- arrest that the is sufficient authorize defendant’s caused his jury negligence.” Y. Dolan, Misc. 57 N.
In Rep., Gallagher execution against held Supp., not be set aside on ground of the debtor will rather omission than willful consisted of an wrong. E., affirms 85 Gill, Y., 68 N.
People v. judg- N. Y. Div., Supp., holding App. might personal injury ment an action negligent an execution person. enforced by *4 E., 1116, N. Y., affirms Co., N. v. R. Davids a that Div., 23; Y. holding Supp., App. be battery might an action in for assault and judgment the person. execution enforced an by against N. Div., Y. v. Crowley, App. In Ossmann the inflicted injury through it held that an Supp., arrest the of defendant’s servant authorized of negligence of identical that under a with Code provision the defendant Carolina. South Nelson, is held that 44 Ill. v.
In Sawyer App., the action the that from declaration it appears where the issue. may a execution tort an upon against person - Concurring C.— held In Burkle v. 4 How. Prac. it is Ells, (N. Y.), an the issue the that execution against person defendant, carrier, an negli common action based upon a in gence. 154, it is held Clark, Keeler v. Prac. (N.
In 18 Abb. Y.), that in an action of for negligently injuring property plain defendant, in tiff an execution possession issued. bemay Proc. In Ritterman v. 7 Civ. Ropes, Y.), (N. is held that the Code arrest of the defend authorizing ant in a includes personal injuries judgment judgment that the statute not mean does negligence; the defendant can be injury arrested when willful. In in cases of tort.
The Illinois statute authorizes arrest Walker, E., 92, Ill., the Court People it was cases of assault justifiable battery; held that and all that at common law it allowed cases ac force. by companied cited North Carolina counsel for re-
The cases from are based a construction of the constitutional spondent contrary provision relating this Court a similar provision construction Berry, supra. of this Court is judgment appealed reversed, case
from and that the be remanded consistent herewith. proceedings Court further Circuit Marion concur. Watts Messrs. Justices concurs result. Mr. Fraser Justice Gary did participate. Mr. Chibe Justice I in the I concur result. do not Mr. Fraser: Justice mere from will warrant think use does not the complaint vituperative arrest. While law, violation of criminal it does allege epithets, arrest inferred. to secure the party To malice may *5 from mere is, debt arises I payment Ray Ins. Co. Pilot Firs The civilized world Constitution. think, in of the violation mean which may has revolted from imprisonment I think mere act of inadvertence. life for a result for concur far, too but I goes leading opinion stated. the reasons INSURANCE CO.
RAY PILOT FIRE S.E., 779) (121 Judgment
Judgment Complaint Not When Void, —North Carolina Diligent Attempt Did Not Show Filed and Affidavit Time, Caro- brought in North an action was to Find Defendant. —Where Carolina, complaint was and lina a resident of South required publication, as expiration filed of the time of before did not show publication and the affidavit C. S. C. § Carolina, find defendant in North diligence used to that due held, rendered void. judgment October, Richland, 1922. Affirmed. Mauldin, J., Before Pilot Insurance Fire Ray Catherine Action by defendant appeals. From a judgment plaintiff, Co. Flliott, B. & McCants and C. appel-
Messrs. Frierson Art., clause: U. Const. lant, S. cite: Pull credit faith 230. Force 1; S., U. judgment Sec. effect of 905 U. North Sec. S. as well as Carolind: Carolina South S., 260. S-, -94 U. Stat., Attachment Rev. 95 U. in which brought, the law state determined by proceedings Attach- C. within jurisdiction: provided property J. - C., 158. L., 95 U. S. C. S. ment 38 S. presumption by publication Attachment and service fduor 350. 18 Wall Judgment not the Court: jurisdiction of F-, E-, collateral attack: subject nonresident creditor by pub- Ed., 931. Jurisdiction E. Ed., 1027. Time S., 174 U. lication: Failure complaint, 58 S. filing file affidavit: C.,N. bar: no< objection, reasonable without