Walicjee, J.,
after stating tbe case: Tbe plaintiff alleges that tbe defendant collected tbe proceeds of tbe sale of tbe options, which amounted to $10,000, and that bis share was one-half or $5,000, from which was to be deducted tbe sum of $600 due by tbe plaintiff on tbe settlement, leaving $4,400 tbe clear balance coming to tbe plaintiff as bis share of tbe profits. So far tbe complaint shows only an indebtedness by tbe defendant to tbe plaintiff arising out of contract. But be further alleges that while be consented that the options might be taken in the defendant’s name, upon tbe assurance of tbe latter that it would facilitate the sale of tbe land and would not affect tbe stipulation as to the equal division of tbe profits, yet be now believes that all this was done with tbe intent to cheat and defraud him, and that tbe sale of tbe options by the defendant without tbe knowledge of tbe plaintiff and without disclosing tbe fact to him was made with a like intent, and further that tbe false representation by which be procured tbe receipt for $250 was also fraudulent and .made in furtherance of tbe original and continuing intent to deprive tbe plaintiff of bis just and equitable share of tbe profits, tbe plaintiff being at tbe time tbe defendant got the receipt an illiterate man. The plaintiff took a judgment [530] for the amount due him as his share of the profits and interest from 1 May, 1903, the time they were received by the defendant, upon an issue which finds that the defendant is “indebted” to him in that amount, “by reason of the matters alleged in the complaint.”
We have already held (140 N. C., 288) that the defendant could be arrested under an ancillary order and committed unless he should give an undertaking conditioned, as provided by the statute, to render himself amenable to the process of the Court during the pendency of the action and to. such as may be issued to enforce the judgment. But this is quite a different thing from imprisoning him under final process until he pays 'the debt or otherwise discharges himself from custody. The only provisions of the law relating to arrest and bail which can have any possible bearing on this case are substantially as follows: A defendant may be arrested where, as factor, agent, broker or fiduciary, he receives money or property and embezzles or fraudulently misapplies it, or where he is guilty of fraud in contracting the debt or incurring the obligation for which he has been sued, or when the action is brought to recover damages for fraud or deceit. Revisal, sec. 121. It is provided that an execution against the person of the judgment debtor shall not be issued, unless an order of arrest has been served, as provided by law, or unless the complaint contains a statement of facts showing one or more of the causes of arrest enumerated in the statute, “whether such statement of facts be necessary to the cause of action or not.” Revisal, sec. 625.
The Constitution provides that “there shall be no imprisonment for debt in this State, except in cases of fraud.” Art. I, sec. 16. This, we think, clearly means that there shall at least be no imprisonment to enforce the payment of a debt under final process, unless it has been adjudged, upon an allegation duly made in the compláint and a corresponding issue [531] found by a jury, that there has beeu fraud. Whether the fraud to which that section refers is one that is committed in contracting the debt, or extends to one that is collateral to it, such as the fraudulent concealment or disposition of property to evade the payment of the debt, is a question we need not now consider, though discussed by counsel. Whatever may be the nature of the fraud, it must be alleged and proved as any other issuable fact, and it is safer and better that when it is found by the jury to exist, it should be recited in the judgment, with a proper order or direction as to the issuing of executions to enforce it. The defendant is entitled in auy event' to have a finding by the jury upon this1 important allegation, before there can be any judgment that will warrant the issuing of an execution against his person.
In regard to this question, we adopt the view taken by the Court in Davis v. Robinson, 10 California, 411, where Judge Field (since a Justice of the United States Supreme Court) said: “There is no doubt as to the correctness of the position that the execution must be warranted by the judgment. It rests upon and must follow the judgment; if it exceeds the judgment, it has no validity. To authorize, therefore, an arrest on execution, the fraud must be stated in the judgment, for the writ issues, in the language of the statute, in the ‘enforcement’ of the ‘judgment.’ Nor do we entertain any doubt that the question of fraud must be submitted to the jury, except' so far as may be necessary to authorize the arrest pending the action. To justify execution against the person, which may be followed by imprisonment, an issue must be framed, and be determined like issues of fact raised upon the pleadings. Fraud is an offense involving moral turpitude, and is followed by imprisonment not merely as a means of enforcing payment, but also as a punishment, and it would indeed be strange if on a mere question of indebtedness the right to a trial by jury should be held sacred and inviolate, [532] and yet snob trial be denied upon a question involving a possible loss of character and liberty. We should hesitate long before we held that this latter question could be tried upon affidavits where the accuser is also' a witness, where the affi-ants are not present, and no' cross-examination of witnesses is allowed. We are aware of decisions in other States holding a different view, but we do not find sufficient reasons advanced in them to induce us to deny what we cannot but regard as the clear right of the party accused.” And again: “The arrest upon affidavit is only intended to secure the presence of the defendant until final judgment; and in order to detain and imprison his person afterwards, the fraud must be alleged in the complaint, be passed upon by the jury, and be stated in the judgment.” It is also said: “By requiring the charges to be stated in the complaint the rights of the defendant will be fully guarded. He can then meet the charges, and have a fair opportunity of defending himself by a trial before a jury.” There was no appropriate issue submitted in this case upon the alleged fraudulent conduct of the defendant, and we cannot hold that the general issue submitted embraced the matters relating to it. As soon as the money was paid by the purchaser of the options to the defendant, he immediately became indebted to the plaintiff for the amount of his share, and his subsequent conduct did not add one penny to that1 indebtedness, nor did it in law increase, in the slightest degree, the obligation to pay it. The debt has continued the same to this time, notwithstanding any of the alleged dishonest acts and practices of the defendant. So that when the jury found that he was indebted to the plaintiff “by reason of the matters alleged in the complaint,” they referred, or at least must be presumed to have referred, of course, to those matters only which were necessary to constitute a cause of action for the recovery of the debt, and they were the transactions between the parties prior to the pay[533] ment of tbe money to and the receipt of the money by the defendant for the plaintiff’s use. This was fully sufficient to raise the implied promise to pay to the plaintiff his part of the proceeds, if there was not already an express one to do so. The allegations of fraud were therefore extrinsic to the cause of action, and it should not be supposed that the jury, under an issue so framed, passed upon the alleged fraud; and they not having made any special finding of fraud, a personal execution should not have issued upon the judgment. Glaflin v. Underwood, 75 N. C., 485; Preiss v. Cohen, 117 N. C., 54.
There should be a separate and distinct issue submitted to the jury as to any fraud alleged, unless the cause of action is of such a nature that the questions of debt and fraud can be tried in one issue, so as to have a clear and intelligible finding as to each of them. Such a case will rarely, if ever, be presented, but we do not at the present undertake to say that an issue in that form would not be proper. It is better practice, though, to have the fraud found as a fact, under an issue by' itself, or separate from that as to the debt. We think the dictum in Peebles v. Foole, 83 N. C., 102, that if there is an allegation of fraud in the complaint and a judgment for the debt, it will authorize an execution against the person if the complaint1 is duly verified, without any finding of fraud, and judgment thereon, was virtually disapproved in Stewart v. Bryan, 121 N. C., at p. 50, where Furches, J., for the Court, says: “It will not do to carry the doctrine of Peebles v. Foote under section 447 of The Code, as amended by the Act of 1891, to the extent contended for in the argument of plaintiff — that, because there is an allegation in the complaint, this fact entitles the plaintiff to an execution against the body of the defendant, whether the plaintiff recovered a judgment against the defendant or not. To sustain this position would be in effect to nullify the Constitution.” That case seems to sustain the view we have taken herein, that the Constitution [534] requires that there shall be no imprisonment for the enforcement of a debt, unless where the fraud has been adjudged upon an issue properly submitted to the jury. It was there held that' a mere allegation of fraud, in aJ verified complaint, was not sufficient, where the judgment was simply for a debt. The cases cited by the plaintiff's counsel are not in point. Kinney v. Laughenour, 91 N. C., 325, did not involve a question of fraud, but a different cause of action, for which an arrest could be made. An order of arrest had been served before judgment, and the jury found the necessary facts to authorize an execution against the person' to issue upon the judgment. The cases of Pasour v. Lineberber, 90 N. C., 159, and Wingo v. Hooper, 98 N. C., 482, merely decide that, at that time, the defendant was not entitled to a jury trial upon the questions of fact raised by the affidavits upon which the orders of arrest issued, and that the denial of a motion to vacate, if not reversed, is res judicata.
The constitutional right of trial by jury shields the defendant from arrest under an execution against his person unless, in actions of debt, an issue of fraud has been found against him and a judgment entered in conformity therewith. We so hold, and must refuse to follow Pallon v. Gash, 99 N. C., 280, if in conflict with our views, or any expressions to the contrary, if there are such, in prior cases. If this right of trial by jury exists where his property, however small its value may be, is involved, with much greater reason is it guaranteed where the liberty of the citizen is imperiled. The provision of the Revisal, sec. 135, does, not bear on the case, as it applies only to an issue, so called, which is raised by a denial of the facts stated in the affidavit, upon which the order of arrest is based and which is ancillary to the principal cause of action. In such a case the defendant may demand a jury trial, but where an issue of fraud is raised by the pleadings, the plaintiff must take the burden and he must [535] establish the fact of fraud before he can be entitled to an execution against tire person of the defendant.
We conclude this branch of the case with the language of Chief Justice Pearson in Claftin v. Underwood, 75 N. C., 486: “We concur with his Honor in the conclusion that the defendant could not lawfully be arrested and imprisoned under, a writ of capias ad satisfaciendum, for the reason that the issue of fraud had not been tried. By the Constitution no person can be imprisoned for debt except in cases of fraud. No case of fraud had been proved against the petitioner.” We also refer to Merritt v. Wilcox, 52 Cal., 238, and Payne v. Elliott, 54 Cal., 339, where the subject is discussed and the conclusion we have reached is fully vindicated.
As our opinion is against the plaintiff in this appeal, it is not imperative that we should decide the question, whether an appeal is the proper remedy for the review of the Judge’s decision upon the habeas corpus or whether the matter should have been brought before us by a certiorari. The question was not much pressed upon our attention, and we advert to it merely for the purpose of suggesting that a careful amendment of the statute relating to proceedings in habeas corpus with a view of affording a speedy and effective method of • reviewing such proceedings in this Court would tend often to promote justice by simplifying the remedy and facilitating its use. It should, of course, be done cautiously so as not to defeat the object of the law in other respects, or to delay its administration in the courts. Eor the purpose of reaching the merits of the case and deciding upon them, we may at least treat this proceeding as in the nature of a motion in the cause to recall the execution and to discharge the defendant, the denial of which motion would be reviewable by appeal. Such a motion was made and entertained in Houston v. Walsh, 79 N. C., 36, and the procedure recommended as an appropriate one. The plaintiff surely has no reason to object [536] to this view being taken of tbe matter, as it is done for bis benefit and so that be may be heard, if bis appeal was improper.
It would seem that habeas corpus will lie where it appears from tbe judgment roll that tbe Court bad no jurisdiction to issue an execution against tbe person. 17 Cyc., 1520; 21 Cyc., 324; Claflin v. Underwood, 75 N. C., 485; Houston v. Walsh, 79 N. C., at p. 41. Tbe statute forbids tbe use of tbe writ only where tbe person applying for it has been committed or is detained by virtue of tbe final order, judgment or decree of a competent tribunal of civil or criminal jurisdiction, or of an execution issued thereon. Revisal, sec. 1822. We see, therefore, that it must be a competent court and it must have bad jurisdiction to proceed against tbe person committed.
This disposes of tbe plaintiff’s appeal in this ease adversely to bis contention.
No Error.
PLAINTIER-'S APPEAL.
WalKER, J.
After tbe defendant bad been discharged upon habeas corpus by Judge Allen, bis sureties surrendered him and be sued out another writ before tbe same Judge and was again discharged. It may be doubtful if tbe sureties could surrender their principal after be bad once been discharged upon tbe ground that be was not amenable to arrest and imprisonment under an execution issued against him in tbe same cause. But however this may be, our ruling in tbe other appeal is decisive of this one. If the defendant was not originally liable to arrest, be surely cannot be held even upon a surrender of him by bis sureties.
No Error.
PLAINTIEE’s appeal.
Walkee, J.
Tbe defendant was ordered to appear before tbe Clerk and be examined in a supplementary proceeding. He moved to dismiss tbe proceeding, as another of a like kind [537] and instituted for tbe same purpose before tbe Judge was then pending on appeal to this Court. Tbe Clerk refused to dismiss, and tbe defendant excepted and prayed an appeal, which was also, refused. He then obtained an order from Judge Allen to tbe Clerk requiring him to certify the record to tbe Superior Court in order that the matter might be reviewed by him as upon appeal, and to stay all action until it could be beard. Tbe record was accordingly certified and tbe case came on to be beard by Judge Allen, who was of tbe opinion that tbe plea of former proceeding for the same cause pending and undetermined was a valid objection to tbe examination of the defendant, as full relief could be bad in that proceeding. Tbe Judge held that tbe ruling of tbe Clerk was erroneous, and ordered that tbe proceeding be dismissed. Tbe plaintiff excepted, and appealed to this Court. We do not understand why this decision was not correct. If it was not, then it follows that tbe defendant might be vexed by any number of proceedings of tbe same kind, when one would fully and completely answer tbe purpose of tbe plaintiff. This is not a question as to the competency of testimony or tbe qualification of a witness, but' it involves tbe right of tbe Clerk to proceed at all, under tbe circumstances. Tbe cases relied on by tbe plaintiff’s counsel are not in point. In Bruce v. Crabtree, 116 N. C., 528, which is more like this case than any other cited, tbe appeal was taken not by tbe defendant Crabtree, but by tbe witness Hartsfield, who bad no interest in tbe cause. It is true tbe Judge who delivered tbe opinion said that tbe order of the Clerk was interlocutory and not appealable, it not being like a final judgment, citing Clement v. Foster, 99 N. C., 255, which it will be found does not sustain tbe view expressed by him. There the plaintiff moved for judgment upon tbe answer, which he alleged was insufficient. Tbe motion was refused; and he appealed. It was properly held that tbe appeal was premature, because be [538] should have noted his exception and appealed from the final judgment in the case. But there is no final judgment in this proceeding, and no stage of it at which an appeal can be taken, in order to preserve and protect the defendant’s rights, unless it is that at which this appeal was taken. When the Clerk was properly informed that a similar proceeding was then pending before the Judge, he should have refused to proceed, and failing so to do, the Judge had the power to order that he desist from further action. If the course suggested by the plaintiff should be pursued, great wrong and oppression might result to the defendant'. The other cases cited are equally inapplicable. This case is governed by Bank v. Burns, 107 N. C., 465, in which an appeal was held to lie to the Judge under circumstances similar to those which appear in this case, and both cases are distinguishable from Turner v. Holden, 109 N. C., 182, as in that case there was a defect in the process which could be remedied easily by amendment, while in this case and in that of Bank v. Burns, “the objection affects the very existence of the proceedings,” as said by Merrimon, C. J., in the latter case. We think ■Judge Allen proceeded regularly, and his ruling meets with our concurrence. It is unnecessary to notice the defendant’s second ground of objection to the proceeding which he assigned before the Clerk and afterwards before the Judge.
No Error.
DEFENDANT'’S APPEAL.
WalKee, J.
When Judge Allen dismissed the proceeding then pending before the Clerk, he required the defendant to give an undertaking in the sum of $1,000 to appear at a time designated, for the purpose of being examined, should his order dismissing the proceeding be reversed, the said undertaking to take the place of the one on file, which was ordered to be canceled. If there was danger of the defendant leaving the State, and it appeared that he had property which he had [539] unjustly refused to apply to tbe satisfaction of tbe judgment, tbe Judge bad tbe power to require bim to give security for bis appearance, and tbis is all be did. Kevisal, sec. 671. Wbat effect our decision in tbe plaintiff’s appeal from tbe order dismissing tbe supplementary proceeding will bave upon tbe undertaking, as security to tbe plaintiff, we need not now determine.
No Error.