Page:The American Cyclopædia (1879) Volume V.djvu/750

746 DEBTOR AND CREDITOR the possession of personal property, where it is concealed or kept out of the reach of the sheriff; and in cases where the defendant has been guilty of a fraud in contracting the debt or in avoiding payment. In the excepted cases there may be an arrest by an order of a judge, in which order the amount for which the defendant shall be held to bail is specified ; and when there has been arrest upon mesne process, the like remedy in all cases is given upon final process. Females are exempted from arrest in all cases except actions for wilful injury to person, character, or property. The legislation of the state of New York has been followed in other states, and may be as- sumed in its general features as the prevalent system throughout the United States, in respect to the coercive remedy for the collection of debts by process against the person. In Eng- land important modifications have been made in the laws relating to the collection of debts. In 1838, by statute 1 and 2 Victoria, c. 110, arrest upon mesne process for debts exceeding 20 was abolished, except in cases where proof was made of the intention of the defendant to leave England. Provision was also made for discharge from liability to imprisonment upon final process, upon the surrender by the debtor of all his property for the payment of his debts. In 1842 (5 and 6 Victoria, c. 116) similar provision was made for discharge from imprisonment for debts under 20 ; and in 1844 (7 and 8 Victoria, c. 96) arrest upon final process in an action for a debt not exceed- ing 20 was abolished, except where there was fraud in the contracting of the debt, or a fraudulent attempt to avoid payment, leaving it to the discretion of a judge to order an arrest upon proof of any such fraud. A great amelioration was effected by these statutes. The relief under the previously existing bank- rupt laws applied only to a class designated as traders, leaving a large proportion of debtors entirely unprovided for ; and the relief itself, even in cases to which it was applicable, was harsh to the debtor, wasteful of the assets de- voted to the creditors, and not unfrequently all beneficial effect was defeated by the techni- cal stringency of the statutes and the extreme severity of the courts. Then as to the relief of insolvents, under the act of 32 George II., c. 28 (commonly called the lords act, from the circumstance of its having originated in the house of lords), it was limited to debtors ac- tually in custody upon execution for debts under 100 (afterward extended to 300); and notwithstanding the surrender of the debtor's property as provided by the act, the creditor could still detain the debtor in prison, subject only to the condition that he was to allow 2*. 4d. a week for his support. The relief afforded by the statutes referred to has been supplemented by others in the same direction, and by the recent changes in the bankrupt laws. (See BANKRUPT.) The several states of the American Union have insolvent laws under the provisions of which, when no national bankrupt law is in force, an insolvent debtor may obtain relief from imprisonment for debt, and in some states may be wholly dis- charged from the obligation of his debts on making surrender of his property, with the exception of those things which by law are exempt from execution. Cases in which debts were fraudulently contracted, and in which payment is sought to be avoided by fraud, are exempted from these laws ; or if provided for, the discharge is generally withheld until after imprisonment for a specified time proportioned to the amount of the debt, and after a judicial finding that the property has been fully sur- rendered. As to the force of state insolvent laws, important questions have arisen under the clause of the constitution of the United States forbidding the states to pass laws impair- ing the obligation of contracts. The conclu- sions to be drawn from the judicial decisions on the subject may be stated as follows: 1. The states may legislate on the subject of bank- ruptcy and insolvency, subject to the authority conferred upon congress by the constitution to adopt a uniform system of bankruptcy, which authority when exercised is paramount, and supersedes all state enactments which conflict with the system established. 2. Such state laws as terminate the legal obligation of the debt cannot constitutionally be made to apply to contracts entered into before they were passed, but they may be made applicable to all such future contracts as can be considered as having been made with reference to them. 3. Contracts made within a state where an in- solvent law exists, between citizens of that state, are to be considered as made with refer- ence to the law. But such law cannot apply to a contract made in one state between a citizen thereof and a citizen of another state, nor to contracts not made within the state, even though between citizens thereof. And where the contract is made between citizens of differ- ent states, the circumstance that it is to be performed in the state where the insolvent law exists will not render it subject to discharge under such law. 4. If, however, the creditor in any case voluntarily makes himself a party to the proceedings in insolvency, he will be bound thereby, whether his demand would otherwise have come under the operation of the insolvent law or not. By the laws of most European countries, the cession of the property of an insolvent to his creditors for the payment of debts is not a ground for releasing his future acquisitions from liability for his debts, but only for discharging the debtor from process against his person. In France, the law re- specting imprisonment for debt has recently undergone great modification ; and in case of commercial debts, the imprisonment is per- mitted for a limited period only, proportioned to the amount owing. Ecclesiastics, minors/ women not engaged in commerce, and septua- genarians are wholly exempt.