The defendant had been arrested upon a ca. sa. from the county court of New Hanover, and at September Term, 1859, of that court, issues of fraud were made up, and upon trial by a jury he was found guilty of fraud and concealment. From the judgment in that court the defendant appealed to the Superior Court, when the cause was continued till Spring Term, 1867. At that term the defendant was called and failed, and the plaintiff prayed judgment upon the appeal bond. His Honor declined to grant the judgment, and the plaintiff appealed. By the act of 1866-67, ch. 63, sec. 1, entitled "An act to abolish imprisonment for debt," it is enacted: "From and after the passage be of this act it shall not be lawful to arrest or imprison any person upon an original writ for debt, etc., issuing out of any court of record, or upon any warrant issuing from any justice of the peace, nor upon capias adsatisfaciendum issuing from any court of record, or from any justice of the peace."
If the word "imprison" had not been used in the act, some (296) question might have been made as to its application to cases where a debtor had been arrested and was in prison, or out on bail at the date of the passage of the act. We must reject that word or hold that the act was to be general in its application, and that the intention was to abolish all imprisonment for debt from and after the passage of the act.
We concur in opinion with his Honor that no judgment could be rendered on the bail bond, which is the nature of the bond given in this *Page 238 case. The securities had no right to arrest or imprison their principal after the passage of the act, in order to surrender him, and the sheriff would have had no right to imprison him; so the condition was made impossible by the act of law, and the bond is saved.
In this case an issue of fraud had been made up. It is provided, Rev. Code, ch. 59, sec. 14, "if, on the trial, the jury shall find that there is any fraud or concealment, etc., the debtor shall be deemed in custody of the sheriff, and shall be adjudged to be imprisoned," etc. But by the act of 1866-67, sec. 3, "all laws and clauses of laws coming in conflict with this act are hereby repealed"; so, if the debtor had made his appearance and a trial had taken place, and a verdict finding fraud been entered, the court could not have adjudged that he be imprisoned. Cui bono, require him to appear and go through the useless and expensive form of a trial, as the plaintiff could not have the fruit of a verdict in his favor?
On the whole, as the object of the litigation has been put an end to by the act of law, all such cases must go off by something like an abatement; that is, be dismissed, each party paying his own costs, as was the case of actions when slaves were the only subject of the litigation, after their political death.
In this age of innovation, when there are no ancient paths, the (297) courts are obliged to make new ones, in order to carry into effect the will of the law-making power.
It was urged on the argument that the act cannot open the jail doorsproprio vigore, and there must be some formal mode of discharging debtors who are in jail. It would seem in such cases that a writ of habeas corpus would apply, so as to have it adjudged that the debtor was entitled to the benefit of the act, unless the creditors consent to his being turned out without such proceedings. However, that question is not before us.
There is no error.
PER CURIAM. Judgment affirmed.
Cited: McKay v. Ray, 63 N.C. 46; Holmes v. Sackett, ibid., 60; Whitev. Robinson, 64 N.C. 701. *Page 239