Long v. . McLean

88 N.C. 3

• Court: Supreme Court of North Carolina
• Decided: February 5, 1883
• Status: Published

Opinion

Ruffin, J.

The summons in this case was served upon the defendant, Leach, alone. The action is for the wrongful conversion of personal property; Accompanying the summons was an order of arrest, under which the defendant was held to bail. At the return term, he moved to vacate the order upon the ground that the affidavit, on which it was based, failed to allege fraud, on the part of the defendant, in taking the goods; and upon his motion being overruled, he appealed to this court.

The fallacy of the defendant’s argument is in supposing that the provision of the constitution, which prohibits “imprisonment for debt, except in eases of fraud,” has any application to actions for tort. In Moore v. Green, 73 N. C., 394, the whole ground was gone over and thoroughly discussed, and it was solemnly resolved that the prohibition — and indeed the provisions of the entire section — was intended to apply only to causes of action arising ex contractu. To give it any other construction, it was said, would be to withdraw a wholesome check on violence and wrong, and would tend to license disorders and law-breaking, incompatible with the peace and welfare of society.

We can add nothing to what is there said, except to call attention to the fact, that similar provisions in the constitutions of other states have received a like construction. Harris v. Bridgers, 57 Ga., 407; McCook v. State, 23 Ind., 127; Lathrop v. Singer, 39 Barb. (N. Y.), 396; People v. Cotten, 14 Ill., 414.

No error. Affirmed.