*(2.) There are other provisions belonging to the in- *397 solvent system which are exclusively applicable to im

and the estate is vested in assignees, and the prisoner or his creditors may petition for an order to vest his estate in assignees. The main object of the last statute was to abolish imprisonment for debt on mesne process, except where fraud can be shown. It is, in many of its provisions, analogous to their bankrupt system. Voluntary preferences, by the insolvent, before or after imprisonment, are declared fraudulent. For debts fraudulently, improvidently, or maliciously contracted, and for damages arising upon torts, or acts ex delicto, the insolvent is liable to close imprisonment, and to be deprived of his discharge for a period not exceeding two years. The discharge only protects the person from imprisonment, and does not protect the future acquisitions and property of the debtor; and the act enables the creditor to reach such property, whether in the funds, or existing in choses in action, or held in trust. In 1844, by 7 and 8 Vict. c. 96, the English insolvent law was further meliorated and improved.1 Imprisonment in execution was by statute abolished as to all debts not exceeding £20, and every debtor may be released from his debts upon surrender of his property, and without any imprisonment, be his debts of whatsoever amount, if he applies for the benefit of the act while at liberty, and before execution. The assignment of the debtor's property includes all his estate, real and personal, at home and abroad, which is vested, or which may in future revert, descend, or come to him, by purchase, will, or otherwise, before he shall have obtained the final order of discharge, and also all debts due to him before such order, (wearing apparel, bedding, and implements not exceeding £20, excepted.) It was further declared, that after the final order to be given on the fair surrender of his property, the future acquired property of the debtor was not to be taken. But much complaint is made in England, by merchants and traders, against the operation of their bankrupt and insolvent laws, as being a fruitful source of fraud and abuse; and the true cause of the evil is said to be the abolition of arrest on mesne process. It is proposed to restore arrest on mesne process, guarding it carefully against abuse. A bill for that purpose was introduced into parliament in 1846. It is likewise proposed in the English discussions, and with much plausibility, if not reason, to abolish all process against goods and chattels, except in bankruptcy, and, as a substitute, to extend the bankrupt laws to all classes of debtors. See the London Law Review for Nov. 1846, vol. v. pp. 87-99, where the subject is considered at large. See vol. i. p. 422, as to the effect of the cessio bonorum in the civil law, and to which our insolvent laws are analogous. The learned commentator on the Partidas, (Greg. Lop. Gl. 3,) as cited in a note to the Institutes of the Civil Law of Spain, by Aso and Manuel, (b. 2, tit. 11, ch. 3, sec. 2, n. 49,) says that the future acquirements of the debtor would not be liable under the cessio bonorum, in the case of a compulsory cession, and in any case sufficient must be left for the debtor to live upon, ne egeat.

The laws of the individual states on the subject of bankrupt and insolvent debtors, have hitherto been unstable and fluctuating; but they will probably be redigested, and become more stable, since the decisions of the Supreme Court of the United States have at last defined and fixed the line around the narrow enclosure of state jurisdic

1 In 1849 the Law of Bankruptcy was further amended and consolidated by the passage of the "Bankrupt Law Consolidation Act," 1849, 12 & 13 Vic. c. 106. Chitty's Statutes,

I. 203.

prisoned debtors, who may, in all cases free from fraud, be discharged from prison, and exempted from future arrest, without the hazard of any constitutional objection. Imprisonment is no part of the contract, and simply to release the prisoner does not impair the obligation, but leaves it in full force *398 against his property. (a) The English process of execution against the body, (and which we have generally followed in this country,) is intended to confine the debtor until he satisfies the debt. It is not a satisfaction strictly, but a means to procure it; though the language of the writ directs the defendant to be imprisoned to satisfy the plaintiff for his debt. (b) In Scotland, the imprisonment on execution is avow

tion. The commissioners appointed to revise the civil code of Pennsylvania, in their report, in January, 1835, pp. 52, 53, complain, in strong terms, of the existing state of things. Congress will not exert their constitutional power, and pass a bankrupt law, and no state can pass a bankrupt or insolvent law, except so far as regards their own citizens; and even then, only in relation to contracts made after the passage of the law. Foreign creditors, and creditors in other states, cannot be barred, while state creditors may be. The former preserve a perpetual lien on after-acquired property, except so far as the statutes of limitations interpose. State bankrupt and insolvent laws cannot be cherished under such inequalities. A difficulty exists in Massachusetts in respect to their attachment and insolvent laws. The process of attachment of the goods of the debtor on mesne process in that state, has existed since 1789, but their insolvent law dissolves the attachment, on the debtor being placed under the operation of that system, either by his voluntary act or by the act of his creditors, and which system aims at equal distribution among the creditors. Creditors suing in the federal courts are said to hold their attachments without having them dissolved, as they are in the state courts by the force of the provision in their insolvent system. The Law Reporter for March, 1846, vol. 8, p. 524.1

(a) Mason v. Haile, 12 Wheaton, 370. Marshall, Ch. J., 4 Wheaton, 201. Beers v. Haughton, 9 Peters's U. S. Rep. 329. The insolvent law of New York, in its application to imprisoned debtors, and as it existed prior to April, 1831, and April, 1840, may be seen in the N. Y. Revised Statutes, vol. ii. pp. 24, 39. But since im. prisonment for debt in New York is now essentially abolished, a detail of the provisions of that system is no longer requisite.

(b) Imprisonment on ca. sa. is no extinguishment of a lien of mortgage for the same debt. Davis v. Battine, 2 Russ. & Mylne, 76. It was said by the court, in Sir William Harbert's case, (3 Co. 11,) that at common law, and prior to the statutes of Hen. III., Ed. I., and III., the body of the debtor was not liable to execution for debt, except in cases of injuries accompanied with force, and for the king's debts. Sir William Blackstone, vol. iii. p. 281, has followed that opinion, and Sir Francis Pal

1 But, by act of congress, 1848, c. 14, attachments in the courts of the United States are put upon the same footing as in the state courts.

edly to enforce payment and the discovery of funds; and it does not, like the English imprisonment, preclude an execution concurrently against the property. The Scottish law of impris onment for debt is slow, cautious, and tolerant in its operation. (a) In this country, the progress of public opinion is rapidly tending to enlarge the remedies against property, and to abolish imprisonment for debt, except where the judgment is founded upon tort, misfeasance, or fraud. (b)

grave, who has examined with great research the Anglo-Saxon institutions, says that no arrest of the person was allowed at common law, except when justified by a breach of the peace, or a contempt of the king's authority. The Anglo-Saxon or Teutonic law gave a distringas on neglect to obey a summons, by which the defendant's goods and chattels were seized as pledges to compel his submission to the judgment of the court. Rise and Progress of the English Commonwealth, vol. i. 181. But this position appears from Bracton, and from the history of legal process as detailed by Mr. Reeves, to be unfounded, if we consider the common law as it existed as early as the reign of Henry III. Sir F. Palgrave refers to the Anglo-Saxon common law. Bracton, 440, 441. 2 Reeve's Hist. Eng. Law, 439, 440.

(a) 1 Bell's Com. 8. 2 Ibid. 537.

(b) In New York, by the act of April 26, 1831, ch. 300, and which went into operation on March 1st, 1832, arrest and imprisonment on civil process at law, and on execution in equity founded upon contract, were abolished. The provision under that act was not to apply to any person who should have been a non-resident of the state for a month preceding; (and even this exception was abolished by the act of April 25th, 1840;) nor to proceedings as for contempt to enforce civil remedies; nor to actions for fines and penalties; nor to suits founded in torts, 7 Hill's Rep. 578; nor on promises to marry; nor for moneys collected by any public officer; nor for misconduct or neglect in office, or in any professional employment. The plaintiff, however, in any suit, or upon any judgment or decree, may apply to a judge for a warrant to arrest the defendant, upon affidavit stating a debt or demand due, to more than $50; and that the defendant is about to remove property out of the jurisdiction of the court, with intent to defraud his creditors; or that he has property or rights in action which he fraudulently conceals; or public or corporate stock, money, or evidences of debt, which he unjustly refuses to apply to the payment of the judgment or decree in favor of the plaintiff; or that he has assigned, or is about to assign or dispose of his property, with intent to defraud his creditors; or has fraudulently contracted the debt, or incurred the obligation respecting which the suit is brought. If the judge shall be satisfied, on due examination, of the truth of the charge, he is to commit the debtor to jail, unless he complies with certain prescribed conditions, or some one of them, and which are calculated for the security of the plaintiff's claim. Nor is any execution against the body to be issued on justices' judgments, except in cases essentially the same with those above stated. To be a resident of the state within the meaning of the act of 1831, it was held that the person must have a fixed abode, and an intention to remain and settle, and not to be a transient visitor. Frost v. Brisbin, 19 Wendell, 11. But this decision ceases now to be of any application, inasmuch as the exception itself is repealed. By the New York act of 1846, ch. 150, the defendant is

* 399

The assignment of the insolvent passes all his interest, legal and equitable, existing at the time of executing

liable for imprisonment as in actions for wrong, if he be sued and judgment pass against him in actions on contracts for moneys received by him, (and it applies to all male persons,) in a fiduciury character.1

The legislature of Massachusetts, in 1834 and 1842, essentially abolished arrest and imprisonment for debt, unless on proof that the debtor was about to abscond. As early as 1790, the constitution of Pennsylvania established, as a fundamental principle, that debtors should not be continued in prison after surrender of their estates, in the mode to be prescribed by law, unless in cases of a strong presumption of fraud. In February, 1819, the legislature of that state exempted women from arrest and imprisonment for debt; and this provision as to women was afterwards applied in New York to all civil actions founded upon contract. (N. Y. Revised Statutes, vol. ii. pp. 249, 428) A provision to that effect had been recommended to the legislature by the chancellor and judges, in January, 1819. Females were first exempted from imprisonment for debt in Louisiana and Mississippi; and imprisonment for debt, in all cases free from fraud, is now abolished in each of those states. The commissioners in Pennsylvania, in their Report on the Civil Code, in January, 1835, recommended that there be no arrest of the body of the debtor, on mesne process, without an affidavit of the debt, and that the defendant was a non-resident, or about to depart without leaving sufficient property, except in cases of force, fraud, or deceit, verified by affidavit. This suggestion was carried into effect by the act of the legislature of Pennsylvania of July 12th, 1842, entitled, “An act to abolish imprisonment for debt, and to punish fraudulent debtors." In New Hampshire, imprisonment on mesne process and execution for debt existed under certain qualifications, until December 23d, 1840, when it was abolished by statute, in cases of contract and debts accruing after the first of March, 1841. In Vermont, imprisonment for debt, on contracts made after 1st January, 1839, is abolished, as to resident citizens, unless there be evidence that they are about to abscond with their property; so, also, the exception in Mississippi applies to cases of torts, frauds, and meditated concealment, or fraudulent disposition of property. Laws of Mississippi, by Alden & Van Hoesen, 1839, pp. 511, 512, 915, 916. In Connecticut, imprisonment for debt on contract is abolished, except in the usually excepted cases of fraud, &c., by statute of June 10, 1842. In Indiana, (R. S. 1838,) prison bounds for debtors are declared to be coextensive with the county. This is reducing imprisonment to the mere vox et præterea nil. In Alabama, by statute of 1st February, 1839, imprisonment for debt is abolished, except in cases of fraud.

In Tennessee, by statute of 1831, ch. 40, and of January, 1840, no ca. sa. can issue to imprison for debt, without an affidavit that the defendant is about to remove, or has removed his property beyond the jurisdiction of the court, or that he has fraudulently conveyed or concealed it. A similar law was passed in Ohio and in Michigan, in 1838 and 1839. The power of imprisonment for debt, in cases free from fraud, seems to be fast going into annihilation in this country, and it is considered as repugnant to humanity, policy, and justice. In addition to the states of Massachusetts,

1 The non-imprisonment acts do not extend to process by admiralty courts. Gardner v. Isaacson, Southern Dist. of N. York, 8 N. Y. Legal Observer, March, 1850.

the assignment, in any estate, real or personal; but no *400 contingent interest passes, unless it shall become vested

New Hampshire, Vermont, Connecticut, New York, New Jersey, Pennsylvania, Michigan, Ohio, Tennessee, Mississippi, Louisiana, and Alabama, already mentioned, imprisonment for debt is abolished in Delaware, Florida, Wisconsin, and Iowa, with the usual exception of all or most of the cases of contempts, fines, and penalties, promises to marry, moneys collected by public officers, misconduct in office, and frauds. By the new constitution of New Jersey, in 1844, imprisonment is abolished in actions for debt, or on any judgment upon contracts, unless in cases of fraud. But imprisonment for debt is still retained under mitigated modifications in Maine, Rhode Island, Maryland, Virginia, North and South Carolinia, Georgia, Ar kansas, Kentucky, Missouri, Illinois, Indiana, and the District of Columbia. See Kinne on Imprisonment for Debt, New York, 1842. Act of congress, March 3d, 1843, ch. 98. The constitution of Rhode Island of 1842, and which went into operation in May, 1843, declares that the person of a debtor, where there is not strong presumption of fraud, ought not to be continued in prison after he has delivered up his property for the benefit of his creditors. An act of congress of 14th January, 1841, abolished imprisonment for debt under process in the federal courts, in all cases in 'which by the laws of the state in which the court is held, such imprisonment has been abolished. In 1838, an act was passed by the British parliament, 1 and 2 Vict. c. 110, abolishing imprisonment for debt on mesne process, except under special order, when the debtor is about to abscond, and requiring the remedies against property to be exhausted before it can be permitted on final process. The execution against the debtor's property reaches the whole profits of the real estate, instead of a moiety as before; and money or bank notes, checks, bills of exchange, promissory notes specialties and other securities for money, may be taken on fieri facias. So stocks, funds, or annuities, or any stock or shares in any public company, may be attached for the payment of the judgment creditor. The creditor has full power over all the debtor's property, and the latter is also liable, as before, to eventual imprisonment on execution.

But it is understood that the English commissioners appointed to inquire into the laws affecting bankrupts and insolvents, have recently (1840) made an interesting report on the subject, in which they condemn as unjust and impolitic the existing law, holding the future acquired property of insolvent debtors who are discharged, liable for their preexisting debts; and they recommend that this distinction between the operation of bankrupt and insolvent laws be abolished; and also, that imprisonment for debt, on final process by ca. sa., except in special cases, be also abolished. In 1842 the cessio bonorum act was introduced into the British parliament, by Lord Brougham, abolishing virtually the practice of imprisonment for debt. In April, 1844, Lord Cottenham introduced a bill into the house of lords for abolishing entirely imprisonment for debt on mesne process and on execution, in cases free from fraud or violence; and that the discharge of insolvents, as well as bankrupts, should protect all after-acquired property. It was during the Samnite war that the Roman law was passed prohibiting personal slavery for debt, and confining the creditor's remedy to the property of the debtor, but the insolvent debtor nevertheless forfeited all his political rights. Dr. Arnold's Hist. of Rome, vol. ii. 277.