The question as to the right of a party in a writ of habeas corpus to appeal to this Court, or whether he be not put to a writ of certiorari, is expressly waived in this case, as is the question of the right of the plaintiff in execution to appeal or have a writ of certiorari when the debtor is discharged under habeas corpus.
We have the naked point: A defendant in action for a debt is arrested and held to bail upon an affidavit charging fraud in concealment of property; the allegation of fraud is denied by the answer, and when judgment is entered, it is in these words: "By consent, judgment for the debt only; issue of fraud not tried."
We concur with his Honor in the conclusion that the defendant could not lawfully be arrested and imprisoned under a writ of capias adsatisfaciendum, for the reason that the issue of fraud had not been tried. By the Constitution, no person can be imprisoned for debt except in cases of fraud. No case of fraud had been proved against the petitioner. On the contrary, that question was by consent left open. So there was no authority for the writ of ca. sa.
PER CURIAM. Affirmed.
Cited: Wingo v. Hooper, 98 N.C. 484; Patton v. Gash, 99 N.C. 285;Preiss v. Cohen, 117 N.C. 59; Stewart v. Bryan, 121 N.C. 50; Ledford v.Emerson, 143 N.C. 533. *Page 343
(487)