Mims v. Lockett

20 Ga. 474

• Court: Supreme Court of Georgia
• Decided: June 15, 1856
• Docket: No. 86
• Status: Published

Opinion

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] There are three things only for which a ca. sa. debtor may be imprisoned. If, when the Court comes to which his case is returnable, he has failed to give notice to his creditor, or refuses at that time to take the oath, or is convicted of fraud by the Jury, the debtor may be committed.

[2.] In the two first cases, the confinement will terminate, of course, whenever he has complied with the requisitions of the Statute; that is, given the notice or taken the' oath. And in the third, notwithstanding the debtor may have been convicted of fraud, still, he cannot be kept in custody one day after he makes a full surrender of all his effects. It is erroneously supposed, that when a debtor is incarcerated upon the finding of a Jury, he is deprived of his liberty until he discharges the debt. Such, however, is not the law; and if it were, it would be in the teeth of the Constitution. So soon as he makes a full surrender, he is entitled to a release from his captivity.

For what was the defendant committed by the Court in this case ? First, because ho had not filed his schedule ten days before Court; and secondly, because he had not made a full disclosure as to his property.

[8.] The Statute, we repeat, does not any where make the failure to file the schedule ten days before Court, a ground for commitment; and it was for a Jury, and not the Court, to decide upon the bonafides of the surrender. The creditor did not see fit to take issue upon it. How could the Court take it upon itself to pronounce it fraudulent ?

The requisition of the time within which the schedule is to be filed, must be construed to be directory only ; and if not filed within the time, it may be a good cause of continuance; still, when the defendant has in fact filed it and offers to take the oath, he can be committed for a failure to comply with the Statute in this respect. And his schedule being filed, either the creditor must take issue upon it and show it to be ■fraudulent, otherwise it will be presumed to be fair, and the •debtor will be set free.

[4.] In view of our State Constitution, to say nothing of ■the strong tendency in the public mind to abolish entirely •imprisonment for debt, it would seem that our insolvent laws were entitled to a more liberal construction in favor of debtors than they have heretofore received at the hands of the ‘Court.