« EelmineJätka »
added the fact that the proceeding is conducted in well have been discharged and exercised by persons secret, we know of no privilege in the law of libel not connected in any manner with the Legislature. that will protect the publication. Ex parte pro The result of its labors was never one necessarily ceedings have been held privileged where there to come to the knowledge of that body, nor to was a right in the accused to appear and defend form part of its records in any manner whatever.” himself. If privileged, where this was not the case, it was on the ground that they were open and might be attended by the public, and that their In Osten v. Morris, Pennsylvania Common Pleas, publication was therefore only an enlargement of April 17, 1885, 42 Leg. Int. 171, it was held that the area to which a knowledge of the proceedings the maker and seller of a machine, chargeable with would otberwise extend. But if merely prelimi- negligence in its construction, is not liable to a nary, and at the same time ex parte and secret, no third person
for an injury sustained in consequence policy of the law can be subserved by their publi- thereof while it is being operated by the purcation, which is not overborne by the damage chaser. The court said: “Where there is negliwhich may result to the reputation of individuals. gence in a maker of a machine, he is not liable to a The accused may escape by reason of having pub- third person for an injury received whilst the malicity given to the preliminary proceedings upon chine is being operated by a purchaser. The causal which his prosecution is to be based. A person connection is broken. Whart. Neg., $ 438. Upon may have his case prejudged, and himself so far the argument a number of cases were cited in supfound guilty in public opinion as to sleprive him of port of this principle. We will refer to three of a future, fair and impartial trial, without any op them. Collis v. Selden, L. R., 3 C. P. 495, was portunity of defending himself in the preliminary where a man who negligently hung a chandelier in proceedings; or he may have his character traducer a public house was held not to he liable to a without the slightest intimation that it will be the stranger upon whom it fell. Justice Byles says: subject of investigation or discussion. It is true “This declaration charges negligence, carelessness that the same thing may happen in a public trial, and improper conduct. Negligence alone will not but what occurs there is open to the world, and do, unless some breach of duty is shown.' In Losee what the public are entitled to witness may in v. Clute, 51 N. Y. 494; S. C., 10 Am. Rep. 638, many instances be disclosed to it through other the defendant sold to a corporation a steam boiler channels. Even this however is not a universal rule, negligently made; it exploded and injured the propas there are cases where the defamatory matter may crty of the plaintiff, for which he brought suit. It be spoken in privileged places when its publication was held that there was no right of action, on the at other places would constitute libel. Cooley ground that “they owed him (plaintiff) no duty Const. Lim. 457 et seq; Townshend Sland. and whatever at the time of the explosion, either growLibel, $ 219, and notes. This is always the case ing out of the contract or imposed by law.' Spenwhere the proceeding in which it is uttered is of a cer v. Campbell, 9 W. & S. 31, was an action secret character. Flood Libel, 193, 194. We think ngainst the owner and operator of a steam boiler to that the privilege of publishing defamatory matter recover for injuries caused by its explosion. The is confined strictly to proceedings of a judicial or plaintiff offered in evidence the deposition of its quasi judicial or legislative nature, and if prelimi-maker, which was objected to by the defendant on nary and ex parte, they must at least be openly con the ground that the contract for the boiler was ducted, and subject to the inspection of the public. made with him, and it was furnished by him, and This is as far as it is necessary for us to go in this that he, the maker, would therefore be liable to an case now in consideration. The joint committee action by the plaintiff Campbell. The evidence appointed by the Legislature of Texas, before whom was admitted under exception. Judge Gibson thus the defamatory words published by the appellant disposes of this exception: “It is just as clear that were spoken, was not a body possessing judicial or the plaintiff in this suit could not maintain an ac quasi judicial powers. It determined nothing; ex tion against either Boyle, the deponent, or Meisercised its judgment upon no question requiring sell, his quondam partner, with neither of whom judicial action; did not even procure evidence did he stand on any relation of privity. Boyle which could be recognized in a court of justice for therefore was disinterestedl.' In opposition to this any purpose whatever. It simply obtained the state principle there have been cited the cases of Godley ments of witnesses under oath, to be used not in a v. IIagerty, 8 Harris, 387; Godley v. Carson, 2 Casey, court of justice, but as a guide to attorneys repre- 111; Elkins v. McKcun, 29 "P. F. Smith, 493; and senting the State in bringing offenders against her
Tartforil Boiler Ins. Co., (!. P. No. 3, not criminal laws to justice. Nor can its proceedings, reported. The first two cases arose upon the same in strictness, be termed legislative. The commit state of facts. The fall of a warehouse in the octee was appointed by the Legislature, and was com cupation of a tenant, and in Hagerty's case an inposed of members of that body, but it was to do jury to the person, and in Carson's an injury to nothing in aid of legislation – it was not even to property. The law of these cases was sererely report any thing for legislative action. The duties criticised by Judge Black in a dissenting opinion required of it, and the powers granted it, could as in Golley v. Curson, 2 Phil. 138. The court in the
first case, and a majority in the second, held the 3. W. being on trial for a crime, A. is called as a landlord liable for injuries occasioned by its fall witness. A question is put to A., to which W. obwhilst in the possession of a tenant, and heavily jects to A.'s answering, on the ground that it may overloaded whilst out of his control. In Carson y. criminate A. The objection of W. is not releGodley, 2 Casey, 121, Judge Woodward says: “We vant (5). go not one inch beyond the case before us. We In case 2 (6) it was said: “The only question say not that he would be liable if he had sold the raised upon this bill of exceptions is whether the building and parted with all control of it.' With defendant had a right to interpose the objection, such a disclaimer the case is not of much value to and require the judge to state the rule of law on this plaintiff. Elkins v. McKean was reversed upon the subject, independent of any objection taken by the ground, inter alia, that there was not sufficient the witness himself. Upon this point the law is evidence to justify tbe submission of the fact of a very well settled that the privilege of declining to willful sale by the defendants of such an explosive answer questions propounded to a witness, on the and unfit oil for burning purposes, with such a will ground that the answer will have a tendency to exful and malicious knowledge.' The defendants pose him to personal liability or to punishment on marked their oil as able to stand a fire test of 110 any criminal charge, is the privilege of the witness, degrees. Does this not authorize a sub-vendor to and not of the party against whom he is called to so warrant it on behalf of the maker, and if so, is testify.” there not a contractual relation between the maker In case 3 it was said: “The witness could not be and the last vendee? From the following quota- required to deliver inculpatory evidence, and it tion it seems that Chief Justice Agnew had this in would present a very different question from that his mind: 'The maxim, qui facit per alium, facit before us if her admissions made under these cirper se, applies when the article is thrown into the cumstances were resisted in a trial against herself. current of trade on the faith of the affirmation of But if she chose to testify against the defendant its manufucturer that it is a fit oil
and he cannot object, because the evidence criminates can be safely used,
they cannot *
herself. It was
& privilege personal to herself determine how much of the responsibility is due to to testify or not. If she waived it, the prisoner others.' But be this as it may, willfulness and mal- connot interpose it to shield himself from the damice were the grounds upon which the Supreme aging effect of her testimony." Court said the action might be sustained, notwith A counsel has no right to argue the witness' objecstanding the several hands through which the oil tion. In King v. Adly (7), a witness for the prosehad passed.” See Loop v. Litchfield, 42 N. Y. 351;cution, having objected to answering a question, S. C., 1 Am. Rep. 543.
because it might subject him to a prosecution, the attorney-general, who appeared for the defendant,
rose to support the objection. Lord Tenterden, RULES AS TO TIIE PRIVILEGES OF WIT-C. J., who presided, refused to allow this, but the NESSES.
counsel for the prosecution having argued that the VI.
witness was compellable to answer, he allows the
attorney-general to reply. But further on in the RULE. The objection, within the foregoing rules, is trial the chief justice said: “I think I am wrong personal to the witness, and cannot be availed of by an in having allowed the attorney-general to argue
the other (1) (a), nor can another than the witness complain point at all. It struck me at the time that having that his privilege has been improperly denied (2) (b). I heard argument on one side I ought to hear it on But otherwise where it has been improperly allowed (c). | the other also. But the privilege is that of the ILLUSTRATIONS.
counsel, not of the party, and I think therefore
that counsel have no right to interfere for the pur(A)
pose of excluding an examination, to which, as 1. An application is made that A. shall answer against their client, there is no objection.” certain interrogatories. B., as attorney for A., re
(B.) plies that he believes the questions will criminate A. This is no answer to the application (3).
1. In an action by A. against B., a witness called 2. A, is indicted for stealing. W., a witness
, is by A. is compelled (improperly) by the court to anasked by A. if he was not the thief. The pub- self of this as a ground of error in the admission
swer a criminating question. A. cannot avail himlic prosecutor oljects that the answer may crimi
of evidence (8). nate W. The objection of the public prosecutor is
In case 1 it was said: “The privilege belongs not relevant (4).
exclusively to the witness, who may take advant(1) State v. Wentworth, 65 Me. 234 (1875); State v. Foster, 23 age of it or not, at his pleasure. The party to the N. H. 35.- (1851); Janvron v. Scammon, 29 id. 290 (1854); Southard v. Rexford, 6 Cow. 258 (1820); Newcomb v State, 37 Miss.
suit cannot object. He has no right to insist upon 383 (1859); East v. Chapman, 1 Mood. & Malk. 47 (1827); Thomas v. Newton, id. 48, note (1827).
(5) White v. State, 52 Miss. 225 (1876). (2) State v. Foster, 23 N. H. 354 (1851); Macarthy v. Bond, I (6) Com. v. Shaw, ante. La. 351 (1836).
(7) 1 M. & Rob. 94 (1831). (3) Osborn v. London Dock Co., 10 Ex. 698 (1855).
(8) Cloyes v. Thayer, 3 Hill, 564 (1842); Clark v. Reese, 35 (4) Ward v. People, 6 Hill, 144 (1843); Com. v. Shaw, 4 Cush. Cal. 89 (1868); see Com. v. Kimball, 24 Pick, 366 (1837); criti594 (1849).
cized in Com. v. Shaw, 4 Cush. 594 (1849).
the privilege, and require the court to exclude the evidence on that ground. The witness may waive it, and testify in spite of any objection coming from the party or his counsel. If ordered to testify in a case where he is privileged, it is a matter exclusively between the court and the witness. The latter may stand out and be committed for contempt, or he may submit; but the party has no right to interfere or to complain of the law.”
(C.) 1. In an action by C. against D., a witness called by C. is permitted by the court to refuse an answer to a question put by D., on the ground that it is a criminating question. The decision is improper, for it is not a criminating question. D. may make this a ground for error in the rejection of testimony (9)
In case 1 the court said that this differed from Illustration B, as the party had been improperly deprived of testimony to which he was entitled.
It has been held in England that when a witness refuses to answer, and without his evidence the prosecution must fail, and the judge commits him for contempt, he will, to prevent a failure of justice, discharge the jury (10).
male, having had sexual intercourse with any one during a certain time. A. answers that he does. A. cannot afterward refuse the name of the person with whom such intercourse was had (13).
3. K. was indicted for body-snatching. M. being called, testifies that he knows K. to be innocent. M. cannot refuse to answer why he knows it, even though it
criminate him (14). 4. In a prosecution for selling spirituous liquors without a license, F., the defendant's clerk, testifies that he had sold rum at the store, but never brandy. He is then asked whether he did not, on a certain day, sell T. some brandy.
He refused to answer for fear of criminating himself. fusal cannot be sustained (15).
5. In an action for divorce from a wife, a witness testifies that he knows that the wife has committed adultery. He must go on and tell with whom, even though it may be himself (16).
In case 1 it was said: “Ie must have been fully aware of his privilege from the beginning, and should have claimed it earlier in order to have secured it. If a witness consents to testify at all, so as to criminate himself as well as the defendant in the matter on trial, he must answer all questions legally put to him concerning that matter. He cannot be allowed to state such facts only as he pleases to state, and withhold other facts. If he could be allowed so to do injustice might be done to the defendant, either by the keeping back of testimony which would tend directly to his acquittal, or which would so discredit the witness as to induce the jury wholly to disregard his previous testimony.
In case 2 A, might have refused to answer the first question, because he might be the man himself, and the answer was a link in the chain. But having furnished that link, he could not refuse to furnish more.
" Can the witness,” said Oakey, J., “proceed to state material facts bearing upon the case, and favorable to one party, and when crossexamined by the opposite party in reference to the same subject, decline answering by reason of his privilege not to criminate himself?
It would seem quite reasonable to go somewhat further than the present case requires, and adopt the broad principle that the witness must claim his privilege in the outset, when the testimony he is about to give will, if he answers fully all that pertains to it, expose him to a criminal charge, and if he does not he waives it altogether.”
In case 3 it was said: “The witness is not to be compelled to answer any question if the answer will tend to expose him to a criminal charge. But if he state a particular fact in favor of the respondent, he will be bound on his cross-examination to state all the circumstances relating to that fact, although in so doing he may expose himself to a criminal charge. We shall not compel the witness to state that
(13) Foster v. Pierce, 11 Cush. 437 (1853).
(16) Brown v. Brown, 5 Mass. 320 (1809); Southard v. Rexford, 6 Cow. 258 (1826).
RULE. Where a witness testifies voluntarily to one circumstance in a criminating transaction he must answer all inquiries concerning the same transaction (a), but not as to other and unconnected criminating matters (11) (b).
(A.) 1. A witness, without objecting, testifies that he has been convicted of the forgery of the bill to which the inquiry relates. He is then asked, “who passed the bill,” but refuses to answer. fusal cannot be sustained (12).
2. A., a man, is asked if he knows of B., a fe(9) Cloyes v. Thayer, 3 Hill, 564 (1842); Clark v. Reese, 35 Cal. 89 (1868); Close v. Olney, 1 Denio, 320 (1845).
(10) R. v. Charlesworth, 2 F. & F. 327 (1860).
(11) “If a witness purposely states a part of a transaction, such as will make for him or the party calling him, even though but slightly, he should not be protected, but where it is apparent that he intends to disclose nothing that may require his going further, and what he does disclose may well enough stand without affecting the point at issue, and moreover is drawn out by questions where the full effect of the answers cannot readily be seen by him, his privilege should not thereby be taken from him. If it is it can be worth but little, for very few witnesses, without the fullest instruction, could, upon the spur of the occasion, readily apprehend the effect of their answers to many questions the shrewd counsel might put, while the counsel themselves might be well aware that the answers would lead directly to the point desired.” Co. burn v. Odell, 30 N. H. 546 (1855); Pleasant v. State, 15 Ark. 624 (1855); Peoplo v. Lobman, 2 Barb. 216 (1818); Dixon v. Vale, 1 C. & P. 278; East v. Chapman, 2 id. 570; Chamberlain v. Wilson, 12 Vt. 491 (1840); Brown v. Brown,5 Mass. 320 (1809); Mayo v. Mayo, 119 Mass. 290 (1876); East v. Chapman, 1 Mood. & Malk. 47 (1827). It seems to be the rule now in England that the witness is entitled to claim the privilege at any stage of the inquiry, and it makes no difference that he has already answered the inquiry in part. R.v. Garbett, 2 C. & P.474 (1847); Paxton v. Douglass, 18 esey, 239 - contrary to the American rule, as stated above. It has been ruled in Massachusetts that a judge is not required to instruct a witness that if he wishes to avail himself of his privilege he must raise the ob. jection before answering any thing.. Com. v. Howe, 13 Gray, 26 (1859). But in the same State it was subsequently held that when it appears to the judge that the witness did not understand that if he answers upon any subject having any tendency to criminate him he must answer every thing about it, the judge may allow him to claim his privilege afterward, and strike out his previous testimony. Mayo 5. Mayo, 119 Mass. 290 (1876).
(12) Com. v. Price, 10 Gray, 472 (1858).
he knows the respondent to be innocent if a full ac a transaction, and refuse to disclose the rest on the count of his knowledge on that subject will tend to ground that he is thus privileged. But this does furnish evidence against himself. But if he chooses not seem to be a case of that character. The witto testify that fact, we shall permit the attorney-gen ness was called to prove the fact of his poverty, and eral to inquire how the witness knows that fact, and to this he speaks fully. He is then inquired of compel him to answer the question. It is clearly whether he had not property to a considerable inadmissible to permit a witness to give a partial amount in some previous years, and admits that he account of his knowledge of a transaction, sup- had. Then comes the inquiry how he had disposed pressing all the circumstances, whether the evi of that property; and this, although not entirely dence is to be used in favor of or against the State.”' independent of the facts he has testified to, is so
In case 4 it was said: “Where a witness dis- far distinct that we think he was authorized to closes a part of a transaction in which he was crimi- stop there, and claim his privilege, notwithstandnally concerned, without claiming his privilege, he ing he had given some testimony on the subject. is then bound to go forward and state the whole. In fact that seems to be the proper place in which Especially ought this to be so where the facts dis to make the claim. When asked in the first place closed are in favor of the party calling him. In if he was destitute of property, there is no obvious this case the witness had testified to facts tending propriety in his alleging that he could not disclose to show that the testimony of the government's that without subjecting himself to a prosecution. witness was untrue. He also testified that he had If he had gone on to speak in part of the disposisold rum for the respondent at the store, but did
tion that had been made of his property, it might not recollect ever to have sold brandy. But when have presented a different case. the question was put to him directly, if he did not
JOHN D. LAWSON. himself that afternoon, after his brother had gone away, sell Jefferson any brandy, he then for the first time claimed his privilege. This he could not
SENATOR TITUS NON-IMPRISONMENT BILL, do, having told a part of the truth, he should disclose the whole."
HE question of the abolishment of imprisonment (B.)
as a means of enforcing judgments in civil 20
tions, has for several years been before the Legisla1. A witness has testified, without objecting, ture of this State; and as it is probable that it will be that she has had criminal connection with A. She disposed of in some manner at the present session, it is not afterward obliged to answer whether or not
seems desirable to call attention to the generally deshe has had criminal connection with B. (17)
fective condition of the existing law of arrest and im2. A. testifies that he is destitute of property.
prisonment, as worked out by judicial interpretation
of the statutes relating thereto, and of its impolicy IIe then admits that he had considerable money and inhumanity as a system of coercive or retributive several years previous. Being thereupon asked justice. what has become of it, he declines to answer, as it
The subject of arrest is one of great importance, inmay criminate him. His refusal at this stage is volving as it does the liberty of the citizen, which in a
free goverumeut is the vital principle of the Constituproper (18).
tion. The Seuate, sensibly impressed with the gravity In case 1 it was said: “The rule that a witness
of the question, has for four successive years (includis not obliged to criminate himself is well estab-ing the present) passed at an early day the bill introlished. It is contended however that if the witness duced by Senator Titus, abolishing imprisonment on waives that privilege when testifying to one fact in
final judgment, except in cases of contempts of court the cause, he cannot claim it while testifying to
and actions for working women's wages. Definite
legislation on the subject has been defeated heretofore any other fact material to the issue. If he consents however by the dilatory action of the successive judicito testify to one matter tending to criminate him ary committees of the House, in reporting the Senate self, he must testify fully in all respects relative to
bill when referred to them. that matter, so far as material to the issue. If he
The charges to be made against the existing law of waives the privilege, he does so fully in relation to
imprisonment on final judgment in civil actions, are:
First, That it fails in many cases to accomplish the that act. But he does not thereby waive his priv- object for which it was created. ilege of refusing to reveal other unlawful acts Second, That in its present condition it is grossly inwholly unconnected with the act of which he has consistent and unjust. spoken, even though they may be material to the
Third, That it is unsound in principle, and permits issue. His consent to speak of one criminal act
a man to be deprived of his liberty without a trial by
jury. cannot deprive him of that protection which the
Fourth, That it is impolitic and inhumane. law affords him, so far as respects other criminal Fifth, That it is unsound on economic grounds. acts not connected with it. Thus the prosecutrix Sixth, That it is subject to great abuse, and is an inwas not obliged to answer whether she had an il strument of oppression in the hands of a merciless licit connection with another man.
Seventh, That it is unnecessary, as there are abundIn case 2 it was said: “There are instances in
ant and sufficient remedies in the law, for the collecwhich a witness cannot be heard to relate a part of tion of judgments without it. (17) Low v. Mitchell, 18 Me. 373 (1841); Tillson v. Bowley, 8
It has been decided by the highest court of this id. 163 (1831).
State, in construing the statutes for the discharge of (18) Amherst v. Hallis, 9 N. H. 108 (1837).
insolvent debtors, that a judgment debtor imprisoned
on execution, who has disposed of his own property nient for debt does not prevail may come into this jurwith intent to defraud the creditor at whose suit he is isdiction and enforce his judgment by our harsh remeimprisoned, is not entitled to his discharge, but may be dies, when he could not resort to them at home, and imprisoned perpetually. Matter of Brady, 69 N. Y. 218; thus it gives to the judgment of the foreign State a below 8 Hun, 437; Coffin v. Gowlay, 20 id. 308; Malter greater force than it was intended to have by the triof Wutson, 2 E. D. Smith; Malter of Fowler, 8 Daly, bunal which rendered it, for the judgment there, when 548.
read in connection with the statutes of that State, In the Matter of Brady the Court of Appeals said: would be a qualified judgment in this sense, and would “That this construction of the statute may lead in say in effect: "A. bas judgment against B. for $1,000, some cases to unlimited imprisonment is possible, but but which is not enforceable by execution against the we have nothing to do but to construe the law and en person of B.” To give it a contrary effect would seem force it as it is; we have 10 power to abrogate it or not to be “giving full force and effect to the judge soften its hard features."
ments, decrees, and statutes" of such State, in the And this although the fraudulent disposition was spirit of the United States Constitution. Besides there made before suit was commenced, and although the is this practical difficulty: The debtor might defend debtor sbows satisfactorily that he has no property at the action successfully if sued originally in this State, the time he applies for his discharge, but has lost it because by reason of its highly penal nature here, he through misfortune. 8 Daly, 548. So that even now would be entitled to hold the plaiutiff to strict pracin the language of Judge Savage
tice, and would be protected by the presumptions may be imprisoned not because he will not pay, but which are raised in favor of liberty in such cases. because he cannot."
Abb. Pr. 412. But in the foreign tribunal there is no How then does such a law accomplish its object in need of these safeguards because the action there is practice in such a case if it is admitted to be coercive not regarded as being highly penal; but is enforced in its intention ?
here as if it were, and the iniquity of the practice is But those who seek to uphold the law say: “The that the defendant camot open the judgment in our law is also intended to punish fraudulent debtors.” courts, but is limited to questioning the jurisdiction “Men who commit frauds should be punished.” Even of the original tribunal. 80! But should a man be doomed to perpetual impris This is an intrinsic defect in the law; it is wrong in onment for such an ollensc?
principle and vicious in practice. It also imposes a Besides it is not the office of the civil law to punish tac upon the citizens of this State to support a debtor crimes; the criminal law takes cognizance of them, its (may be for life) for the benefit of a non-resident who penalties are adjusted with reference to the turpitude pays no taxes here, and whose own State will not asdisplayed in the offense, and its mode of procedure sume a reciprocal burden for the benefit of our citiis better calculated to secure a proper administration of retributive justice and to protect the liberties of the Considered from an economic standpoint a law citizen.
which renders a human life useless; which ties a man's Iu strange contrast to the severity of the rule In re hands and forces him into idleness and ruin, because Brady, and illustrating the inconsistency and injustice he has nothing, and then calls upon him to retrieve of this branch of the law, is the doctrine of Sydam y. hiinself, is palpably absurd ;- enforced and unlimiBelknup, 20 [Iun, 87, where the petitioner was ar ted idleness, having for its object the enriching of the rested in an action for converting moneys and securi creditor, and maintained at great expense to the ties belonging to plaintiff, while he was acting in a State. fiduciary capacity. The petitioner was duly exam The Romans made the debtor work out his debt for ined under proceedings for his discharge, and his tes the benefit of his creditor, and be was his slave actimony showed that after accepting the trust reposedcordingly; there was a frugal policy in this, and stern in him he fraudulently and in violation of said trust justice, which although it seems barbarous to us bad used the money and property of the plaintiff for his nevertheless the merit of being reasonable. own personal use. It was held that the petitioner was We read with horror of the primitive Roman law entitled to his discharge, on the ground that the evi which condemned the judgment debtor to be cut in dence did not show that he had disposed of or made pieces and his body distributed among his creditors, over any of “his own property with intent to de unless his friends would pay his debts (see Hunter's fraud creditors. The General Term distinguished the Roman Law); but we countenance a law which procase from In re Brady, by saying that in the latter de longs the debtor's agony, killing him by inches, where fendant was charged with disposing of his own prop its black-mailing process fails to extort a satisfaction erty, and could be imprisoned perpetually, while in the of the judgment from his distressed family or friends. present case defendant had disposed of the property of What lawyer does not know of the efforts made by another and could accordingly be discharged under the unscrupulous practitioners to frame their actions and statute.
conduct tbeir proceedings so as to get the judgment Judicial interpretation has worked out the condem debtor into jail, when they know he is insolvent, and nation of these statutes, for it has made them declare for the open and avowed purpose of filching the money that it is an unpardonable offense in some cases for a from his family; of the extortions of sheriffs, the anmau to dispose of his own property; while if under the noyance and disgrace of public arrest, arranged at a same circumstances he disposes of the property of time when it will most embarrass and distress the another, which he holds in the sacred character of a debtor, and the hundred and one hardships to which trust, he may go free. So much for the consistency and the poor debtor is subjected. justice of the law.
These are not imaginary cases, but the actual exIt might be urged as a grave objection to the exist periences of every day. ing law that it permits a man to be deprived of his There will be abundant and sufficieut remedies left liberty without a trial by jury, where the natural term in the law for enforcing honest dealing and also for the of his life may be at stake.
collection of judgments, if the law of imprisonment is Where the facts upon which a defendant is arrested abolished as provided in the Titus bill. are extrinsic of the cause of action he is tried upon af The Peval Code, enacted in 1881, makes the obtainfidavits. 1 Abb. Pr. (N. S.) 419.
ing of property by false pretenses a larceny. It also Another serious objection to the existing law is that provides (5514), “that a purchase of property by means a creditor residing in a community where imprison of false preteuses is not criminal where the false pre