There, is no reported casé where the exact contention of the appellant has been sustained, and I am not in favor of extending the right to imprison for debt. The construction of the statute so as to authorize a defendant to issue execution against the person of a plaintiff on a judgment against him for costs, where an action has been brought by him for a tort in which he has failed to recover, is based upon a contention in conformity with the principle that “ all they that take the sword shall perish with the sword.” It is now proposed to further sustain the right to imprison for debt by strictly construing the language of section 15 of the Code of Civil Procedure so as to authorize the imprisonment of a deféndant, although he has never taken the sword and although the plaintiff has failed to establish his complaint. By said section 15 it is provided that a person shall not be arrested or imprisoned for the non-payment of costs awarded otherwise than by a final judgment or a final order made in a special - proceeding instituted by a State writ. In this case the judgment of the County Court reversing the judgment of the Justice’s Court in favor of Losaw, without remanding the case for a new trial, is final, in that it puts an end to this action, but it is not a determination that Losaw committed the wrong charged in the complaint. Smith not only failed in the Justice’s Court to obtain a judgment establishing that Losaw had trespassed Upon his real property, but the judgment in the County Court left the controversy wholly undetermined, although a new action can be brought by Smith to recover damages for the wrong claimed by him. In construing the statute w.e must look to the purpose for which it was *759enacted. An execution against the person is allowed to compel the payment of a judgment for damages occasioned by a wrong and as some punishment to the person committing the wrong if he does not pay the damages occasioned thereby. The construction of the statute contended for by the appellant permits a person who is wholly innocent of any wrong to be imprisoned if by some error of the court, for which he is not personally responsible, a judgment in his favor on the merits is subsequently reversed, with costs.
Section 15 of the Code of Civil Procedure seems to have been enacted for the express purpose of preventing an arrest or imprisonment for the non-payment of costs unless the wrong charged in the complaint is first finally established against the defendant, or the action is terminated against the plaintiff’s contention, and I think it should be so construed in this case, and that the judgment and order should be affirmed, with costs.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.