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Rivera v. Cadierno.

that there is no such thing, in a general sense, as imprisonment for debt or imprisonment in civil actions in the United States, and that there is, in fact, something in the Constitution preventing it. Without question, the idea of imprisoning for debt is abhorrent to a vast majority of the American people. See Ex parte Dexter, 1 Hayw. & H. 191, Fed. Cas. No. 3,854. The fact is, however, that there is no provision in the Federal Constitution relating to the subject at all. There is a national statute (§ 990, Rev. Stat., U. S. Comp. Stat. 1901, p. 709) which provides that no person shall be imprisoned for debt in any state on process from a United States court if imprisonment for debt has been abolished in such state, and that all modifications, conditions, and restrictions as to that subject, provided by the laws of any state, shall be applicable to process from courts of the United States. It therefore appears that Congress has left this question, certainly in so far as states are concerned, to the states themselves. Low v. Durfee, 5 Fed. 256; Cooper v. Dungler, 4 McLean, 257, Fed. Cas. No. 3,192; 16 Am. & Eng. Enc. Law, 2d ed. p. 16.

Imprisonment for debt as obtaining in England previous to the coming of the early colonists to the original thirteen states, and even in the early colonists themselves, had become so odious that it was abolished or modified by constitutional provision as soon as the colonies had achieved independence and constitutions were adopted. In fact, it is historical that many of the early colonists, especially of the Carolinas and Georgia, were genteel people whose freedom from debt imprisonment in English "Marshalseas" had been purchased by their friends, or who had been released from such bondage by direct order in the nature of a pardon by the King.

As showing that public sentiment in the nation is still over

Rivera v. Cadierno.

whelmingly against the idea of imprisonment for debt or in civil actions, it may be stated that it has now been abolished absolutely in Alabama, Georgia, Maryland, Mississippi, Missouri, Tennessee, and in all the remaining continental territories save Alaska, and probably in the state of Texas; and has been abolished save in cases of fraud, in Arkansas, Florida, Indiana, Iowa, Kansas, Minnesota, Nebraska, Nevada, North Carolina, Ohio, Oregon, Wyoming, and other states. It has been greatly restricted in Michigan, New Jersey, South Dakota, Wisconsin, Colorado, Illinois, Kentucky, North Dakota, Pennsylvania, Rhode Island, and Vermont. Nevertheless, it has been repeatedly held that statutes regulating the right of imprisonment for debt, and in civil actions, save where abolished, are constitutional and are not in contravention of any of the clauses of state or national organic law. 16 Am. & Eng. Enc. Law, 2d ed. p. 16; Norman v. Manciette, 1 Sawy. 484, Fed. Cas. No. 10,300; Ex parte Hardy, 68 Ala. 303; Ex parte Bergman, 18 Nev. 331, 4 Pac. 209.

The question here is: Are the foregoing provisions of the Code of Porto Rico constitutional and proper enactments, and are the allegations here sufficient to warrant the issuing of the order of arrest applied for? There is nothing in the organic act of Porto Rico, nor in any act of Congress applicable in the premises, that prevents the local assembly from passing this act, and its general legislative powers apply "to all matters of a legislative character not locally inapplicable." Sec. 32, organic act, 31 Stat. at L. 77, chap. 191.

The Constitution governs Congress, and the laws enacted by Congress are the supreme law of the land in Porto Rico whenever applicable, because it is so provided and it has been held by the courts that: "The statute of Congress organizing a ter

Rivera v. Cadierno.

ritory within the jurisdiction of the United States is the fundamental law of such territory, and, as such, binding upon the territorial authorities;" and that: "Subject to the limitations expressly or by implication imposed by the Constitution, Congress has full and complete authority over a territory, and may directly legislate for the government thereof. It may declare a valid enactment of the territorial legislature void or a void enactment valid, although it reserved in the organic act no such power." First Nat. Bank v. Yankton County, 101 U. S. 129, 25 L. ed. 1046.

A remarkable fact as tending to show that Congress itself does not wholly discountenance this sort of legislation is that in June, 1900, when passing a code of civil procedure for Alaska, it incorporated a chapter on "Arrest and Bail" (31 Stat. at L. 347, et seq. chap. 786) which is practically a copy of the modern codes on this subject in several of the states. The Code of Porto Rico above quoted is almost similar to this Alaskan act in the material provisions to be considered here, with this difference, that 144 aforesaid provides for the arrest "when the action is for wilful injury to person (or) to character." While the provision for Alaska is that the arrest can be made "when the action is for an injury to person" leaving out the words, "to character." This provision is probably a significant one, because: "By the terms of the various constitutional and statutory provisions of the several states, the defendant cannot be arrested in an action on contract, except where he has been guilty of fraud." 16 Am. & Eng. Enc. Law, 2d ed. p. 17, note 3 and cases cited.

It is also apparently well settled that obligations arising in tort or ex delicto are not debts within the meaning of the constitutional inhibitory provisions of the several states, and that

Rivera v. Cadierno.

therefore orders of arrest or executions against the person may competently issue in the case of claims founded upon torts, when not specifically prohibited. See cases cited in note 4, p. 17, and note 3, p. 19, of Am. & Eng. Enc. Law, vol. 16, 2d ed., supra.

In a note (5) on p. 18 of this same work, a large number of cases are cited as supporting the doctrine that: "Where the plaintiff has an election to bring his action either ex contractu or ex delicto, the arrest of the defendant being prohibited in the former case and allowed in the latter, the better doctrine seems to be that he cannot subject the defendant to arrest and imprisonment by electing to sue in tort. But where the action is to recover damages for a distinct tort, although one growing out of the existence of a contract, the plaintiff, by disaffirming the contract, and proceeding against the defendant for his fraudulent or tortious conduct, may render him liable to arrest." Schermerhorn v. Jones, 1 How. Pr. 147. "The right of arrest is not affected by the mere fact that, in an action founded in tort, a contract is alleged by way of inducement." McDuffie v. Beddoe, 7 Hill, 578; Cotton v. Sharpstein, 14 Wis. 226, 80 Am. Dec. 744.

A common provision of the statutes, where it is permitted, is that the defendant may be arrested in an action to recover damages for "injury to person or character," and under these provisions it has been held that the defendant may be arrested in an action for seduction, for crim. con., for assault and battery, for malicious prosecution, false imprisonment, libel or slander, etc., etc. 16 Am. & Eng. Enc. Law, 2d ed. pp. 20, 21, subhead, "Injuries to Person or Character," and cases cited. The provisions of the local Code above cited appear to be identical with the provisions of the statutes thus referred to.

A breach of promise to marry is a breach of contract; and, in

Rivera v. Cadierno.

the absence of any charge of fraud, the imprisonment of the defendant in an action for such breach is within the constitutional inhibition against imprisonment for debt. Re Tyson, 32 Mich. 262; Perry v. Orr, 35 N. J. L. 295.

In New York, where there is, or at least was, no constitutional provision against imprisonment in civil cases, it is, or was, provided by statute that the defendant may be arrested in an action for breach of promise to marry. Code Civ. Proc. S 549; Durand v. Durand, 2 Sweeny, 315; 16 Am. & Eng. Enc. Law, 2d ed. p. 32, note 2.

Plaintiff's counsel, during the hearing of the application, refused repeatedly, on request of defendant's counsel, to state whether he considered this particular action one based upon a contract or sounding in tort, but insisted that it was a statutory proceeding under the local Code. Notwithstanding this fact, a careful examination of the complaint, and in view of the fact that Porto Rico has no local Constitution other than the organic act, we are constrained to hold that the proceeding is an ordinary action ex contractu for damages for the breach of a contract of marriage, even though the injury is unquestionably a wilful one "to her person and character."

The affidavit in support of the application for the order of arrest sets out that the parties were engaged for about three years, and that the whole community was cognizant of such fact, and believed they were going to be married, and therefore we can appreciate that it is no light matter to plaintiff to have defendant, without explanation, go off to Spain, and, contrary to his promise to her, and her rightful expectations in the premises, marry someone else. But notwithstanding this, if the provision of the Code aforesaid, permitting arrest "when the action is for wilful injury to person or character," is authorized by

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