Finley, James C.

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University of Kentucky

Kentucky Law JournalVolume 20 | Issue 4 Article 81932Arrest of Defendant in Civil ActionJames C. FinleyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Civil Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationFinley, James C. (1932) "Arrest of Defendant in Civil Action," Kentucky Law Journal: Vol. 20 : Iss. 4 , Article 8.Available at: https://uknowledge.uky.edu/klj/vol20/iss4/8NOTESARREST OF DEFENDANT IN CIVIL ACTIONEarly in the practice of law the question of the justice ofthe arrest of the defendant in a civil action for an unliquidatedclaim presented itself to this writer. This problem, which isexistent in but a few of the states, must, however, not be con-fused with the old practice of imprisonment for non-paylmentof a civil debt. It has been universally held that similar pro-visions in the codes of various states do not violate the constitu-tional provisions forbidding deprivation of liberty without dueprocess of law (5 C. J. 438).Hence it is unnecessary to relate the background of humanexperiences, decisions, customs and reforms which have con-tributed to and guided the development of our laws since thetime when men were arrested, persecuted and their personalliberties taken from them for debt. Suffice it to say that thepractice became so abhorrent to freedom-loving, thinkingEnglishmen that it is axiomatic and fundamental in our presentday jurisprudence that man may not be deprived of his freedomas punishment for non-payment of a civil debt, no matter howjust or overdue the claim may be, and irrespective of that man'sability to pay.But, it is submitted, there is far more justice in the practiceof placing at the disposal of a civil creditor the use of the insti-tutions which the state maintains for punishment of offendersagainst the public decorum to enforce the payment of a debtwillfully withheld, than can be ascribed to the arrest of thedefendant as early as at the beginning of the action, before theclaim can properly be called a debt, and *before a trial on themerits of an unliquidated claim for a money judgment, whichthe defendant may yet deny. And in some states it is providedthat the relief will not lie in an action for debt upon a contract.The procedure in procuring the order of arrest is much thesame as in the attachment of the property of the defendant.The affidavit upon which it is issued must state facts in strictcompliance with the statutory grounds, see. 152 and 153, Ken-tucky Civil Code (Fonda and Sons v. Field, 6 R. 439, Sup. Ct.),ARREST OF DEFENDANT IN CIVIL ACTIONand must be accompanied by a bond of indemnity to the defend-ant so arrested, to an amount not exceeding double the amountof the plaintiff's claim (S. 154 Ky. Civil Code), and the defend-ant will be held to bail in the amount stated in the plaintiff'spetition.Theoretically, the provision is intended as a relief againsta possible fraud by prohibiting the defendant from departingfrom the state and fraudulently concealing his property, orremoving it so that process upon plaintiff's probable judgmentcan not be executed, or in prohibiting him from leaving thestate, having property in the possession of himself, or in thepossession of someone for him, without leaving enough in thejurisdiction of the state to satisfy plaintiff's claim. The dis-tinction, practically, between these two statements of thegrounds for the order is hard to understand when, under See.18, Kentucky Constitution, the same element of fraudulentlyremoving or concealing his property by the defendant must beshown under each, and such implication of fraud would cer-tainly be negatived by the fact that the property of the defend-ant in his or the possession of another for him is already inanother state, and was not placed there in contemplation of theplaintiff's action, and has never been subject to the process ofthe court in which the action is pending.Further, as to property within the jurisdiction of the courtwhen the action is commenced, attachment, together with themeans the court may have of enforcing its orders, will morenearly accomplish the plaintiff's end than will the arrest of thedefendant, which arrest carries with it no power of search orto take from defendant's possession whatever property he mayhave, and no power over his property already out of the juris-diction of the court, in another state.It is not difficult to imagine the extent to which this law,intended to prohibit fraud, may be practiced as a "squeezing"process, or revenge, nor does the requirement of a bond in doublethe amount of the plaintiff's claim insure against the injusticewhich may be accomplished in this "legal" manner. A plain-tiff may bring a defendant into court to answer for an unliqui-dated claim, the amount of which has been arbitrarily set at anunreasonable sum, held to bail in that amount until judgment,and the liability of the plaintiff on his bond, should the defend-K. L J.-8KENTUCKY LAw JOURNALant later, perhaps years later, receive the verdict, is no morethan the actual injury sustained by the defendant because ofhis arrest, and would be the same if the plaintiff's arbitraryclaim had been not so great and the defendant held to bail in asmaller amount, which he, perhaps, could have executed at thestart.But, it is said, the defendant may move to vacate the orderfor his arrest, or to reduce the amount of his bail, See. 177 Ken-tucky Civil Code. It is submitted that justice can never bedone by placing a man where he is forced to take the initiativein a fight for justice, with the burden upon himself to allege andprove his grounds for asking his freedom-a limit to which thestate has not dared to go in the punishment of offenders againstthe public law..Even more pronounced are the latent evils of this relic ofan antiquated practice, when its peculiar method of doing justiceis relied upon in a suit by a wife against her husband foralimony. Under Sec. 2124 Kentucky Statutes, no bond isrequired of her, and here a vicious, irate wife, who has quar-relled with her husband, over a matter of family interest, andbefore the triviality of her complaint can be known, may, forthe purpose of avenging her feminine wrath, have a defenseless,loving husband arrested, bound and incarcerated in the bastileof the thief and the, murderer, set the amount of his bail atwhatever she may choose, incur no liability for her own acts,and for months to come see him languish in the dungeon, breathethe breath of the criminal, bereft of his freedom, to wallow inthe mire of the lawless, when he has committed no crime, yetimposed with the burden of proving his own defense-and wellmay we ask, if this is the equity for which a Kentucky Court ofEquity may be recognized.JAMES C. F INLEY,Madisonville, Kentucky.

Arrest of Defendant in Civil Action

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Arrest of Defendant in Civil Action

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