Morrow v. Weaver

¶11. All the questions in this case, involve the construction, more or less, of the act abolishing imprisonment for debt, and cannot well be determined without ascertaining its true meaning and extent.

¶2*292The first section of this act provides, “ that if a plaintiff, or his agent, shall make oath of the amount of the indebtedness of any one to such plaintiff, and that the debtor is about to abscond, or such debtor has fraudulently conveyed, or is about fraudulently to convey, his estate or effects, or such person hath moneys liable to satisfy his debts, which he fraudulently withholds; then, and in that case, it shall be lawful to arrest the body of such debtor, either by bail process, capias ad satifaciendum, or other process to arrest the body, known to' the law; but in case the debtor thus arrested, shall make oath that the particular ground upon which he is arrested, is untrue, and that he hath neither estate, effects or means, whereby to satisfy the same, then he shall be released by the arresting officer, immediately.”

¶3So far in the act, no very serious difficulty as to its meaning is supposed to arise. The creditor is only entitled to cause the arrest to be made, by making oath of the amount of his debt, and swearing to one of the four facts named by the act. When the debtor is arrested, he is dealt with in precisely the same manner as he would have been, if this act never had been passed. If it is mesne process, he either procures bail, or is at the risk of the sheriff; if it is final, he either goes into close confinement, or is allowed the benefit of the prison limits, upon giving the statutory bond and security. But in either case, if he chooses to do so, and his conscience will justify that course, he may make oath that the particular ground on which he is arrested, is untrue. When arrested on final process, in addition to the oath, he must also swear’, that he has neither estate, effects or monies, whereby to satisfy the debt, or liable for the same. Whether this latter oath is likewise required when the arrest is on mesne process, we need not now inquire. Upon taking this oath, he is to be released immediately.

¶4It results from this brief analysis of this section, that the discharge from the arrest can only take place, by reason of the debtor’s denial of the truth of the ground assigned for his arrest, when the party is in actual custody of the officer. But it does not, we think, follow, that he can never be discharged, if he omits to take the oath, until after he is enlarged on bail, or on prison bounds. This will be evident, when we consider, that on mesne process he may at any time, be surrendered by his bail, and that he is then held by the sheriff, under the original authority. Be*293ing thus held, there is the same reason to discharge him, upon his tabing the requisite oath, as there would be if the sheriff, during the entire interval between his arrest and the surrender, had continued him in actual custody. The statute does not speak of his being discharged by his bail, or by his securities for the prison bounds, when the oath is taken, but directs that he shall be released by the arresting officer, immediately — that is, as soon as the proper affidavit is made — for doubtless the oath must be in writing, and delivered to the arresting officer, as his justification for permitting him to go at large.

¶5Under this section, it is entirely evident, we think, that the intention of the Legislature was, to put oath against oath, without requiring any notice wh atever to be given, or interposing any restriction, except upon the conscience of the debtor. This construction of the first section of the act, is sufficient to enable us to determine that the first plea demurred to is bad, as it asserts a discharge by due course of law, in consequence of a denial of the ground upon which the debtor was arrested. The discharge under this oath, as we have shown, can only take place when the debtor is in custody of the arresting officer. It is not necessary therefore, to examine the other supposed defects of this plea.

¶62. The other plea asserts a similar discharge, as the consequence of rendering in a schedule of his estate, under the second section of the act. So much of that section as it is necessary to construe is in these words : “ When a plaintiff, or his agent, shall take either of the alternative oaths required by the last section, and the same shall not be controverted by the oath of the debtor, then such debtor may discharge himself from said arrest, by rendering a schedule of all his estate, effects, choses in action, and moneys, which he has in his possession, or is entitled to, and taking” a particular oath, which it is not necessary to repeat here. “ And if the plaintiff shall desire to controvert the truth of such oath, or schedule, then, on making oath that he believes the same to be untrue, any justice of the peace shall be legally authorized to summon a jury of twelve men, instanter, to try the question, whether such oath or schedule is untrue, and fraudulent, or not; and said jurors shall be liable to the challenge of either party, as in civil cases.” The remaining section directs what shall be the consequences of a verdict against the debtor; one of which is imprisonment, not exceeding one year; and another is, that he *294shall forever be debarred from the beneficial provisions of the act.

¶7It is this portion of the statute, of which it is difficult to ascertain what the intention of the Legislature was ; but if it stood alone, and unaided by other enactments in relation to the same subject matter, it cannot, we think, be questioned, that a proper construction would require the creditor, or his agent, to be notified, that the debtor intended to discharge himself, by rendering in the schedule, and taking the oath prescribed by the statute ; for otherwise, it would be impossible to give effect to that part which provides, that in case of a verdict against him, the debtor shall be debarred from the beneficial provisions of the act. This part of the enactment, therefore, seems to indicate the intention, that the debtor should not be discharged until after the controversy between himself and the creditor. The difficulty of construction however, is lessened, when the other statutes in relation to the same subject matter are examined. We have heretofore held, in the case of Wade v. Judge, 5 Ala. Rep. 130, that the act of 1839 was to be construed in connection with the other legislation upon the same subject matter, to ascertain how, and in what manner, the property surrendered should be disposed of; and in whom the title became invested by the surrender. The same rule of construction will refer the matter of notice, left doubtful by the act of 1839, to that of 1821, which provides, very fully, how it shall be given, and when. By that act it is made the duty of the judge, or two justices of the peace, to whom the application is made for the discharge, to appoint a time and place, and to cause at least ten days notice to be given to the creditors, their agents. &c., if within the State, and twenty days notice, by advertisement, if without the State; it also provides what the notice when served on the creditor, shall advise him of [Clay’s Dig. 275, § 9.] This act also provides the mode and manner in which the hearing shall be had, and the discharge made.

¶8The only difficulty there is, of engrafting the second section of the act of 1839 upon .that of 1821, is, that the former permits the oath of the debtor, and his schedule, to be controverted before one justice of the peace, while the former act requires the action of two to receive the schedule and grant the discharge. This difficulty is nothing more, however, than an incongruity, which is sometimes found to exist in other cases, when several statutes to*295gether make one general system ; but it offers no serious impediment to the operation of the law. The application for a discharge must be made to a judge, or to two justices of the peace, and they proceed to hear and determine the application for a discharge, and make the requisite orders respecting the property, &c. surrendered. If the creditor, beyond this, wishes to controvert either the oath or the schedule, any one of the justices would form a court, competent for that purpose, and we cannot doubt, that the verdict of a jury, under the act of 1839, would have the effect, as it is declared it shall, to debar the debtor from the beneficial provisions of the act.

¶93. We need not perhaps have said so much, if our only object was to show the badness of the other plea demurred to,for that is evidently vicious, under the conclusions to which we have come, in not averring notice to the creditor, and also, because, if that was given, there has been no discharge by a judge, or two justices, as prescribed by the act of 1821.

¶104. It only remains to consider the charge upon the evidence, which is, that under the proof before the jury, the plaintiffs could not recover. The proof showed, that the defendant voluntarily went within the common jail, and placed himself in the custody of the sheriff, while in the prison bounds. If this was done with the intention of surrendering himself as a prisoner, and in discharge of his sureties, we cannot doubt that it was a discharge of the bond for the prison bounds. Whatever may be the local law of New York, with respect to the inability of a prisoner, or his sureties, to avoid such a bond there, by his surrender, it is certain that it may be done under our laws. Indeed, if the prisoner omits, at the expiration of sixty days, to surrender himself, within the prison walls, that is a breach of the condition of the prison bounds bond, as, after that time, the limits allowed by law are the walls of the jail. McMichael, et al. v. Rappelye, et al. 4 Ala. Rep, 353.] To require a debtor to surrender himself at an exact day, and not allow him to do it in advance of that day, is a matter which, we think, is not a fair construction of the statute.

¶115. But the intention with which the surrender was made by the debtor, was a main subject of inquiry before the jury; if made with the intention to discharge his sureties, and to impose on the sheriff, the duty of holding him by virtue of the ca. sa. it was a discharge of the bond; but if the surrender was colorable merely, *296and not intended for this purpose it cannot have that effect. This is a matter which should have been left to the jury, and having been withdrawn from their consideration, by the generality of the charge, the judgment must be reversed and remanded.