
    
      CARRABY vs. DAVIS.
    
    Appeal from the court of the first district.
    whoT¡>%‘b™t to absent him* self, be a» res-property1^6 saUsfv the de-man í, he may be discharged °,n sh<¡w¡tiehe <Kts uave ⅛™suid tho’ if - a ••• be d ubífui whe* therheisable hi* Tf* n Aofí
   Porter, J.

delivered the opinion of the court. The defendant was arrested on an affidavit that he was indebted to the plaintiff, and 1 that he was about to remove from the state without leaving in it sufficient property to sa- . tisfy the demand, J

A rule was taken on the plaintiff to eause why the order of arrest should not be set aside, and the court after hearing testimony made the rule absolute.

The principal ground on which the correctness of this decision has been assailed, is, that the evidence shews the defendant to be in embarrassed circumstances; that if all his debts were enforced against him he would be insolvent. This fact is not clearly made o>^ by the proof, and a great part of the debts do not fall due for years. But admitting it were the law does not speak of a man not having property to pay all his debts but that he has not enough to pay that sued on. Many are the instances in which a debt is collected by execution, where the party is insolvent. Were it however otherwise, it might be sufficient for pg to say, that laws which deprive men of their J r liberty on the oath of their adversary, ought to . . . 1,11, receive a tnct construction, and should not be extended to any case not coming within the letter.

But this construction is not only in consonance with the letter, but in pursuance to the spirit of the law. The case has been argued» as if it were the object of the enactment tb obtain security for the debt. But this is clearly erroneous. The intention of it was nothing more, than that the creditor should have the body of his debtor, in case there were not goods enough to satisfy his claim. Now every object of the law is attained by the construction we put on it, in case a man who has a good deal of property in his hands, but who owes to the amount of it, leaves the state. If he remains absent the execution that may issue on the judgment obtained against him, can be levied on the property behind, and the debt will be satisfied. The insolvency cannot stand in the way of the recovery, nor diminish the se. curity unless the debtor will return and file his bilan, and the moment he returns into the state to do so, his body is subject to the process of the creditor. Take it therefore which way we will, the purpose for which the statute was rrr de is fulfilled. The creditor has his goods less his debtor should come back to make a cession of them, and then he has his body. In a word the creditor has every security he would have had, if the removal had not taken place, and we are most clear the statute had in view nothing more.

Seghers for the plaintiff, JEustis Canon for the defendant

As in the case before us, there is proof that the defendant leaves behind him sufficient property to satisfy this debt, and as we see nothing to prevent the creditor being satisfied out of it, unless the debtor should return and file his bilan, we are of opinion the judge below committed no error in discharging the order of arrest. Code of Practice, 214.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be affirmed with costs.  