| Ill. | Jan 15, 1865
delivered the opinion of the Court:
This record presents the question whether the discharge of a defendant, arrested and in custody, under a capias ad satisfaciendum, by agreement of the parties, made when a jury were unable to agree whether there were grounds for his arrest under our constitution and laws, operates as a satisfaction of the judgment. At common law, there seems to be no question that such was its effect. In Great Britain, and in the various States of the Union where the common law obtains, it is held, it is believed, without an exception, that seizing the body in execution operates as a satisfaction of the debt, and the plaintiff can have no further process under his judgment. In most of the States of the Union, as well as in Great Britain, however, the rigor of the common law has been softened, by legislative enactments or constitutional provisions. It has been held in several States, whose statutes require the plaintiff to deposit the jail fees in advance in order to hold the defendant in custody, and he was discharged because of a failure to advance such fees, that the discharge did not operate as a satisfaction of the judgment, but plaintiff might still sue out a fi. fa., or other process, until he obtained satisfaction in fact. Prentiss v. Hinton, ,6 Blkfd, 85; Hadden v. Saunders, 2 R. I. 391; Stover v. Dunn, 3 Strob. 448. And in Nadin v. Battie, 5 Bast, 147, the same rule is adopted.
The reason of the rule seems to be in such cases, that there is not a consent by plaintiff, but the discharge is produced by operation of law. And for the same reason, if a trial under our insolvent laws were to result in a verdict in favor of the defendant, and he were under those enactments released from custody, the debt would not be discharged. Then why should there be a distinction between a case in which a defendant has resorted to the insolvent laws, denying the fraud, submitting his case to a jury, and they finding him not guilty; or even where they find him guilty of the fraud, and he surrenders his property; and a case in which a jury are not able" to agree, and the plaintiff says that he is satisfied that he cannot establish the fraud which he had charged, and is willing that the defendant may be discharged from imprisonment? The defendant, after having resorted to the insolvent laws to obtain his discharge, accomplishes his purpose as effectually by the admission of the plaintiff in execution that he is unable to prove the fraud, as if the jury had found him not guilty and the court had ordered his discharge.
Our constitution, by art. 13, sec. 15, declares that “ Ho person shall be imprisoned for debt, unless upon refusal to deliver up his estate for the benefit of his creditors, in such manner as shall be prescribed by law, or in cases where there is strong presumption of fraud.” Under this provision, strictly speaking, imprisonment for debt is abolished in all except two cases ; one for a refusal by the debtor to surrender his property for the benefit of Ms creditors, and the other where there is a strong presumption of fraud. A plaintiff may sue out a ca. sa. under either charge, and the defendant when arrested may deny the charge, and demand a jury to try the question, and then the plaintiff, to hold the defendant in custody, must prove the charge or the defendant will be released. If, on the contrary, the plaintiff establishes the charge, he may then, by paying the jailer’s fees in advance, hold defendant in custody until he makes a full and fair surrender of his property, and executes an assignment for the benefit of Ms creditors, or until he shall pay the debt. But where he obtains a discharge by surrendering his property, the statute declares that the debt shall not be satisfied, but the debtor shall be free from future arrest, under the same judgment.
In the case of Burnap v. Marsh, 13 Ill. 535" date_filed="1852-06-15" court="Ill." case_name="Burnap v. Marsh">13 Ill. 535, it was said: “ It must be remembered, that under our constitution, no person can be legally imprisoned for debt alone; and it is only in cases where the debtor is fraudulently or wrongfully endeavoring to evade the payment of his debt, that he can be restrained of his liberty. The imprisonment, then, is not for the debt, strictly speaking, but for his wrongful act in endeavoring to evade its payment” Thus it is seen, that the imprisonment is for the wrong, or the fraud, rather than for the debt. Then, if under our law, strictly speaking, there is no imprisonment for debt, the rigid rules of the common law cannot be applied. If imprisonment for debt is abolished, and it can only be had for the fraud or wrongful refusal to surrender his property for the benefit of his creditors, it follows, that the effects and consequences of imprisonment for debt, at the common law, must also fail.
At the common law, the judgment creditor might seize the body of his debtor, under execution, and hold Mm until the debt was paid, and the debtor had no means of releasing his body except he paid the debt. Under our statute, on the contrary, the debtor may release himself whenever he may choose, by resorting to proceedings in conformity with its provisions. Having resorted to such proceedings, and thus claimed his discharge, if by any means he obtains his liberty whilst litigating the question of the rightful or wrongful imprisonment, he cannot be heard to say that his debt was thus discharged. He obtained all he desired, and for which he originated proceedings under the insolvent laws, and when he comes to be again arrested on the same debt, it will be time to insist that he was discharged from liability to future arrest on the same judgment.
The judgment of the court below is therefore affirmed.
Judgment affirmed.