Anonymous

Headnote

Abbest.—Special Bail.

Where a defendant in an action has been arrested under the non-imprisonment act of 1831, he should be discharged upon giving special bail as required by the statute.

Whether the Code has not changed the form of bail in all actions, guare.

Motion to discharge from imprisonment a defendant arrested under non-imprisonment act.

The defendant in this action was arrested under the “act to abolish imprisonment for debt and to punish fraudulent debtors,” passed April 26, 1831. He controverted the facts and circumstances alleged, and testimony was given thereon. At the conclusion of the trial he was adjudged guilty, and committed. He thereupon sued out a writ of habeas corpus, claiming that as there was an action pending to recover the amount in controversy, he was entitled to bail during the pendency of the suit, which was argued before Mr. Justice Barrett on February 6, 1877. On February 7, Mr. Justice Barrett delivered the following opinion:

“I have examined the law applicable to this case, • and my impression is rather in favor of the right to a discharge on putting in and perfecting special bail

under the act of 1845. But I will hear counsel further before finally making up my mind.”

The motion was re-argued, when the justice intimated his opinion was the same as before, but dismissed the writ on the ground that it was not the proper form in which to bring the matter before him.

An order to show cause was then obtained by defendant’s attorney, and argued before Presiding Justice Davis.

I. Defendant is entitled to bail, during the pendency of this action, under the Laws of 1845, ch. 214. The legislature intended by said act to relieve a man from the necessity of making an assignment or paying the debt, until judgment has been obtained. The justice adjudging, a defendant guilty does not pass upon the fact whether a debt is due or not, but only upon the fact whether fraud has been committed. The act leaves the plaintiff in the same condition when judgment is obtained, as at the time the commitment is issued (Laws of 1845, ch. 214; Graham’s Practice, 3d ed. title Special Bail; Burrill’s Practice, titles Special Bail and Non-Imprisonment Act. And as to form of bail, see Burrill’s Appendix).

I. The act of 1845 only applies when defendant has made application for an assignment (See Laws of 1831, Non-imprisonment Act, and Laws of 1845, ch. 214).