Cooper v. Hodge

"When the law abolishing imprisonment for debt and with it the writ of capias ad satisfaciendum, was promulgated, every proceeding begun but not perfected under these writs, became null and at an end. So, when this act took effect a capias then in the hands of the sheriff became a nullity, and the bail was thereby instantly discharged.

Appeal from the commercial court of New Orleans. This comes up under a proceeding against the surety in a bail bond. The defendant, M. Hunt, had been arrested and held, to bail. Judgment was rendered against him upon which a fieri facias issued and was returned no property found; a capias ad satisfaciendum had also issued and returned not found; but before the return day of the writ had expired, the law abolishing imprisonment for debt went into operation, which also abolished the capias. . The plaintiff now took a rule on the bail to show cause why he should not be made responsible for the amount of the judgment as the condition of the bail bond was forfeited by not producing the defendant. The bail denied his liability. There was judgment on the rule in his favor and the plaintiff appealed. , 1. The evidence in this case is sufficient. The neglect or refusal of the bail to surrender the principal in execution of the definitive judgment, is prima faeie evidence, that the principal had departed from the State and the bail consequently liable. Hudson v. Perry & al. 8 La. Reports, 124. 2. Ho case has gone further in settling principles favorable to the bail than the oase of Bws v. Houghton, 9 Peters, 331. In that case it is settled, that “ when the principal would be entitled to an immediate discharge upon being surrendered, the bail will be discharged without a surrender.” Prom this [477] the inference is plain, that if the principal would not be entitled to an immediate discharge upon being surrendered, the bail is bound to surrender Mm or in default thereof to be liable to pay the debt. The law of 1840, for the abolishment of imprisonment for debt, would not discharge the principal upon his being surrendered; on the contrary he would be imprisoned for three months. Sect. 4th of the law. 3. The right of the bail to obtain a discharge by a surrender of the principal granted in arts. 231, 233 and 234, of the Code of Practice, has not been abrogated by the law of 1840, abolishing imprisonment for debt. 4. The obligation of the bail was not to pay upon the unsuccessful issuance and return non est inventus, of a ca. sa.; but to present the body of the debtor in execution of definitive judgment or to become -responsible for Mm. Code of Practice, 235. 5. “ Execution of definitive judgment,” simply means the exhaustion of all legal remedies for the enforcement of judgments. The question in this case then is confined to the simple inquiry, has the plaintiff executed the definitive judgment obtained by him against the principal; if so, has the bail presented the body of the debtor ? The record in this case shows that the plaintiff has exhausted all legal remedies for the recovery of his debt in vain; and that the bail has not complied with his obligation. He is therefore liable. Section 19th, of the law of 1841, creating additional sheriffs in the parish of Orleans (if it does not entirely repeal the law of 1840, so far as it can effect this case), is at least a legislative construction of that law, and as such is entitled to great consideration with the court.