
    Martin et al. v. Chrystal.
    tt is not necessary, to subject a party to tbe penalties imposed by the tenth section of the stat. of á8 March, 1840, abolishing imprisonment for debt, bn one purchasing merchandize for bash and disposing of the same, or removing it beyond the reach of his vendor, -without having paid tho price, that he should have been tho ‘principal in tho transaction, where it is shown that tho purchase of the articles was a fraud contrived between another person and himself, probably for their nnitual benefit. The law will hold both to have been purchasers.
    Art. 107 of the constitution relates exclusively to criminal proceedings,
    Judicial proceedings, having for their object the incarceration of the debtor to compel the pay! ment of his debts, or instituted against a debtor guilty of fraud, have always been held by our courts to be civil, and not criminal proceedings. Proceedings against an insolvent debtor for fraud, under the stat. of 28 March, 1840, aro civil proceedings.
    form the Third District Court of New Orleans, Kennedy, J. T.
    
    ÍL Wolfe, for the plaintiffs.
    
      Race, Foster and Soulé, for the appellant.
   The judgment of the court was pronounced by

Etjstis, C. J.

The defendant is appellant from a judgment of 'the Third District Court of New Orleans, by which he was adjudged to pay the plaintiffs the sum of §965 94, with interest from judicial demand, and to be imprisoned for the peno'd of two years from the day of the rendition of the judgment,

The proceedings against the appelant where instituted under the act of the 28th of March, 1840, entitled An act to ábolishiniprisonment for debt. The ferial by jury was waived, and tho court held the defendant guilty of fraud under the tenth section of said act, in having purchased merchandize in New Orleans for cash, and having obtained possession thereof and having disposed of the same; and removed it beyond the reach of his vendors, 'without having paid the price or ’any p'alt thereof.

It is contended that Chryjstal was not considered by the plaintiffs ’as the principal in the transaction. We do not think that this was necessary, in order to sustain the judgment under the act. It appears manifest that tke purchase of the plaintiffs’ articles by Van Allen, was a fraud concocted between him and the defendant, pi-obably for mutti'al benefit, ahd that in the eye of the law both are held to be purchasers. The evidence on this point, we consider, fully supports the ■judgment.

It is urged in behalf of the defendants that, the proceeding in this case is a prosecution for the violation of a statute, which carries with it a grievous penalty—that of imprisonment for a term not exceeding three years; that the prosecution is essentially a criminal one, and, not being instituted by and in the name of the State, but conducted on the petition of the plaintiffs solely, it cannot be sustained under art. 107 of the constitution. That art. provides that, “prosecutions shall be by indictment or information,” “Les poursuites criminelles se feront par acte d’accusation ou sur information.” This provision was not in the old constitution. But from section 18 of ait. 6 of ttie constitution of 1812? and from the othéi provisions of art. 107, evidently refers exclusively to criminal proceedings.

Judicial proceedihgs having for them object the incarceration of the debtor for the payment of his debts; have always been held by our courts to be civil and not criminal proceedings. Notwithstanding the caution with which the rights of the román citizen were protected by the laws, after a certain delay in the payment of a debt the debtor was delivered into tho power of the debtor by virtue of a sanguinary law of tho twelve tables; and although civilization and humanity in time modified if, its vestiges still exist under oiir modern social systems. In Louisiana the-writ of capias ad satisfaciendum, in ordinary cases of debt, was only abolished by this act of 1840. The object and policy of that writ was not tho punishment of the debtor, but to force him to discharge his debt by depriving him of his liberty. Under this view of the subject, the Supreme Court held the proceedings under this act to be civil and not criminal, in Maurin's case, 15 La. 536. That case was one that attracted great attention at the time, and was fully and thoroughly considered. Under the insolvent acts of 1808 and 1817, the proceedings against debtors guilty of fraud, under which the gravest penalties were incurred, have always been held to be civil proceedings; and the Supreme Court hasnotonlyuniformly taken cognizance of them, but has more than once reversed verdicts of juries by which the defendants had been acquitted—a power which no court would attemptto assume, in any other than a civil proceeding. Andrews v. His Creditors, 11 La.467. Castel v. Creditors, 4 La. 574. Coquet v. Creditors, 4 La. 198. Prados v. Creditors, 1 La. 175.

Considering the character of these proceedings under our jurisprudence, as settled by decisions in the court of the last resort, we think the provisions of the 107th art. of the constitution not applicable to them, it relating only to criminal prosecutions. Judgment affirmed.  