¶1Mr. Justice Terry concurred.
¶2The'petitioner was arrested on final process of the Court below, to *240answer a judgment obtained against Mm, in an action for assault and battery.
¶3The seventy-third section of the Practice Act provides, that “ the defendant may be arrested when the action is for willful injury to person or character,” etc. This provision is directly in conflict with the fifteenth section of Article I of the Constitution of this State, which provides, that “ no person shall be imprisoned for debt in any civil action, on mesne or final process, unless in case of fraud,” etc. See case of Holdforth, 1 Cal. R., 438.
¶4An assault and battery is not a case of fraud, in .the sense that that term is employed by the Constitution; neither can it be made so by the Legislature; and the judgment is a debt, as much as though recovered in an action of assumpsit.
¶5The defendant must be discharged.