, 1862-06-19
imprisonment for Debt-Important
Decision.

nAe1le, 0eNSefed IN The Circuit COnft ye8ter- |
Gay morning, upon the motion to discharge
the bail in the case Of Hi1debssnd vs.. LII:
In Circuit Court, Of june Term, ts02. Philomene
Charge bail.
OPINION or 1uDax 1AE1ERRE.
The defendant was arrested and held to bail upon
an affidavit OF the plaintiff alleging breach OF
promise Of marriage on his part aad that the
aas e
= sssas 4 II; 1a5s9lsas Psssiss i; ~
On fling this affidavit anordeF Was made requiring
the defendant to be held to bail in the sum q
and motion y ao% " tRae Raas ,a
The ground in the affidavit, upon which the f1ght
Of the plaintiff to capias Is asserted; u ING q
& ntract Get forth in the affidavit. and the delend
ant rests bis motion for discharge o. ball in the
f4n 55 nf iS; aRea1on dts q s1a liz pn
asas aata tSst &c deendaais sdavt shoud Be
nanto4f % or %contrsdicory adsvit is adnas5e
en- motion to, discharge bail First Therefore, |
| AZ to rhie question. |
At common law, where there WAS certain debt |
to the amount Of twenty pounds. Or damages to |
that amount, which might be reduced to certain
money, the defendant might be arreeted a. mat
fr cf course on an affidavit shortly stating the
Shere Il be amaccs were alonether nneertssn ani
/ unaeeertained, there could be no arrest without
special order Of The court or judge upon . full
| unreasonable that the defendant should be arrest
! I'd for what damages the plaintiff fancies he has
F4asc nd i Rssa f Ses f. TSds H.
cass Of cases. where the debt Was certain, It #as
the settled practice CT the Kings Bench not to go
tesing teri into oAs' tie m'erits, and not 70 receive
either supplemental o.. explanatory All
darits on the part Of the . plaintla, .,S Or
aefendant. a id is. Even T an ~ affidavit Of the
plaiDtid's confession that the defendant owes him
Glars Of casee, Viz where the debt was not certain,
Int rested in claim for damages IN thslr nature
, uncertain in amount, the matter Of bah YES dis
ea:es. i was the uniform nj practice 5or tie
eho5d be granted ior special bsl to permit eoa-
defendant. Third; This the state Of the com.
mon Law when our ststnte entitled enact-
sns M r p i g ssoa ai sst te the
this point By which It was declared: :. That the
tail Taken as herein directed may be discharged,
| which the writ is returned, application during
. proof
: Il is manifest from this clause that 1t Was the
tn1e1tion o1 the Legislature to make the order d
the clerk allowing bail final in the first instance
court TO discSa1ge o. rednce tie bsn On aa1iziac
tory proof on application at the return term .
the witt, at leaet IN the class Of cases where thE
amount claimed rest in damages. Whether an ap
plication to discharge q 1ee1ee the bail h1ed :,
the clerk can be entertained before bail is ACTUALLY
pont not Taszd shis case are n his view IL
affidavit of the defendant is not improperly on ths
e tles and may be read on this notion
n | The next question Is: What weight Is to he &C
corded to the defendants denial Of the frau
charged in the affidavit On which the writ issued
Tie f. That BE- S has
pEeFoDGcsance the plaintiff must fail But In thi
case think it was the intention OF tho legislator
tra5icsing lie case made by the plantiE. to caz
II the burden OF overcoming it upon the defendan
~ The words Of the law ore, that the bail may b
From tie context 1t would seem that the satisfa
tory proof is to be made by the defendant. He
the plaintiff IN the motion, and this view best q
" cords with the evident meaning Of the Inv az
IL with common law ana1og1es
np The mere denial b. The defendant OF the fraI
alleged is therefore not the satisfactory proof CO..
ir templated By this statute, especially In the a
in Ecnec ct any matter IN the Plaintiffs afadav
beqe a2a nrdb or her III st
d. made in bad Faith and solely with view to hara
:, the defendant.
sh support u his motion is This, yiz: That the at
dayft does not chow sufficient cause for holdi1
seEo7ed vieSs
n tione. First, that conceding al the facts allcg
le In the plaintiffs affidavit 10 be true, yet they
&C. not fulfil the legal definition Of fraud-in 9th
No. words. do not constitute fsaud in a. leg
pe~ ecpee, however great M offense In morals M
5he ca.es, 1t lesEt IN this Slate. affirm and set
tbe the doctrine, that under and means Of Pr
-, mice Of marriage woman fs seduced, the sede
me lion may be given evidence part Of the da
jor ages arising from the breach Of promise. And
49,, n.ay be eaid upon th- authority ct those cast
to
Of esya Judge T1nmbq1, in Tabba rs. Van K1eck,
~ ploximate result Of the act complained Of E
tas seduction iB not the necessary consequence
lro, promise Of marriage, the rules OF pleading wo
~" ground Of speclal damages. though perhaps
on Placticc has been to treat it III aggravation
My Eut thcngh seduction may be regarded as C.
the sequence of promise to naIsy. yet it BY no me-
q of follows that the promise is in every case fta
and woman. So far IS the right to recovery of d.
'do sges Is concerne,, ], IT is not material with #
and good TAI o. ut 20 far tic
The ne b9dy o. sa assnasn %
,ood dicated on sucha promiEe when made as ale
ap5 Intention to fulNl il, and solely with :
&c br s
IL the point now under consideration. Wha
effome device, token OF artlace, with yfes
The deprive another Of come advantage or nigh
be purpose right Of action ensues to the other
n:as damnided in body, mind and estate, We have
ects, that the law eompensatesa woman In damage
i7et, 1hs aost % oasy tst 70 m nes
ches Jury not resultipg directly from the fraud wi
lsion prdet celoE o. promlse o. marriage, nc
nose shield her under eueh circumetances and aor<
liay the remedies fot redress that It iuEnshs
"lla others.
Mt to The eecond position under M this o91ectio' q II
ut to davit fnldf the legal definition Of fraud ret
lived insisted that the fraud thus alleged in the i.
Tenty tnade @ - es, On mesns process Under tie
u the etitution and the statute concerning
wing v;sw To- 1efeat the creditor in Inc coection
r. nh. Of the Constitution and Of the. statutel
= w. clanse Of the Constitution upon which this
their AET1c1E ia, SEC Is. No person shall be In
s he anfss ereo se ees Il
th the nsaneT @ as s9al DC presennea p aw u9 OF y
It will A. yet We have had no authoritative expos
and q a5s sectaon setlpg ano Mhah e = ~
fifty fraud in tie inception Of the contract OF fra
posi- ne eaor o. t1s aGntor 20 anger T. a19 oeay
pro- cludes both together, with ali sncb forms as
Lake Eay assume, has not neen dcnnltely ao]Gags @
vi b 1sssssaIy t6sreio5s,, s, to givs It ,st, e
whether OF not fraud in the inceptit
contracts likewise within the puryiew
NJ 4 section. In considering this question and fo
1t 0e an opinion upon It We Ehal be greatly aided
after examination ct similar provisions to be fou
their tns Sn1l.est or the States Of
tion Of the former, adopted December
to the 20 aThat thn E VII pc 81 toona aah.o.
ointed there is not a strong presumption Of fraud
not be continued IN prison aftc1 deliyerfr
| bona fde, all his dstste, real and personal {
meet | use Of his creditors, In such manner as sh
5aao., hereafter regulated by law.f
ASeese- In the constitution Of Kentucky. adopted
te rea- II. 1779 I find the following: ARTICLE y
Il their Il That the person OF debtor where there
strong presumption OF fraud. shall Iot
hao an tiuued IN prison after delivering up his est
the benefit Ct his creditors in such manner
lc quail i Wi be pepsieVed &c that these two sectio
tive, Of brace substantially the same purpose and
- and that tho last Was taken almost word 70
ance VI from the former. At common law, as We b
recourse ready Ecen the right to capias against tn
! Of debtor Tes mstte1 OF right on1nesne
as final process, whether the debtor was g
county, fIaud or not. It waa process yesorted tt
ne early ms,e 1eae,d 4e ~ 1ast5an nr1sn ~ IN
Galena inception Of The debt or in the dispost
niyersi- us EippS1y - aso1a " 9siea. ~ COZ
ment of from the constitutions Of North Carroll
Lrned to WI , snas ~ y & a. aoL a4e u
4@~ ~H3 49,