Moore v. . Green

BodhaN, J. Two questions of some importance are presented by the record in this case : 1. Was the defendant privileged at the time of his arrest? The authorities which have been found on this point are very few, but they are very respectable -and we consider them decisive. They establish a distinction between parties who are attending Court prosecuting civil actions and persons who have been brought into Court on criminal process and have been discharged from arrest under it. In Hare v. Hyde, 16 Adol. and Ellis., ei, secy. 304, (71 E. C. *396 L. Rep. 373,) the defendant Hyde had been tried for embezzlement and acquitted and discharged. Immediately afterwards and before leaving the Court room, and whilst the Court was still sitting, he was arrested on a oa. sa. On the hearing of a ¡motion for his discharge, Lord Campbell, C. J., said : “ I am of opinion that the defendant had no privilege in respect of his having been tried and acquitted and ordered to be discharged. He was after that, in the same position as any other of the oir-<Gumstar\tes in Court. The eases show that an acquitted prisoner has no privilege redeundo -¡ and it follows that while remaining as a spectator, he ha3 no privilege more than any one «else.” This rule must equally apply to a prisoner not acquitted but discharged from arrest on bail. There may not be any very strong reason for the distinction above stated. That which is suggested is, that parties in civil actions appear in Court voluntarily, and should be encouraged to appear, by im-anunity from arrest; whereas defendants in criminal actions appear involuntarily, and need not be encouraged. Perhaps another reason may be the probable difficulty of finding persons of the class of those who are rhost generally arrested for ,crime. But whatever the reason may be, as the rule is not apparently unreasonable or oppressive, we feel bound to abide by the law as we find it to have been heretofore declared. '-.-In the case cited, as in the ease before us, the defendant was arrested during’the sitting and in the presence of the Court. It was held that the prisoner was not thereby necessarily entitled to his discharge ; that the Court might, in some cases, order his'discharge, and might treat the arrest as a contempt; .but if that Court did not think proper so to treat it, no other ■Court would do so on the application oí the prisoner. See .also Goodwyn v. London, 1 Ad. & El., 378 (28 E. C. Rep., 106..) 2. It is contended that an arrest in an action for a libel, is in violation of section 16, of the Bill of Rights of this State, which says “there shall be no imprisonment for debt in this (State, except in cases of fraud.” The argument is this. The *397 moment a judgment shall be obtained, the claim for damages is converted into a debt j the person of the defendant is thereupon liberated, and his bail discharged. For what purpose then require bail, who are tobe discharged at the first moment when their liability can be of any value % It is an oppression to the defendant and of no possible benefit to the plaintiff. Dellinger v. Tweed, 66 N. C. Rep., 206, is cited as the authority for the proposition that the claim for damages is converted into a debt within the meaning of the Constitution, by the recovery of judgment. Undoubtedly, for some purpose, it is. An action of debt may be maintained on it, and a fi. fa. may issue on it. But to construe the above cited clause of the Bill of Rights, as forbidding imprisonment for any cause of action which, by judgment would become a debt, would make its prohibition extend- to all cases, as every cause of action becomes a debt in one sense when a judgment is recovered on it. Chitty, in his standard book on Pleading, divides all actions into two great classes •. those which arise ex con-tractu, and those which arise ex delicto. No doubt the framers of the Constitution had this familiar classification in mind, and in forbidding imprisonment for debt, they referred rather to the cause of action as being ex contractu, than to the form it would assume upon a judgment. If they had meant to forbid imprisonment in every civil action, they wrould have said so. But by forbidding it for debt, they plainly imply that it may be allowed in actions, which are not for debt. In forbidding imprisonment for debt, as popularly understood, viz : for a cause of action arising ex contractu, they responded to the general public sentiment; but I know of no writer on the reform of law, who has recommended the abolition of punishg ishment for trespassers and wrong doers. Such a provision might be humane to the injuring, but if would not be so to the injured parties. It would withdraw from the State its power to impose a wholesome check on .violence and wrong, and would tend to license disorders and law-breakings incompatible with the peace and welfare of society. *398 Dellinger v. Tweed, has no application to the present case. It is confined to a construction of the article of the Consfitu tion respecting homesteads. There is no error in the judgment below. PeR Cubiam. Judgment affirmed.