There shall be no imprisonment for debt in this State, except in cases of fraud.
History Note. - The provisions of this section are similar to those of Art. I, § 16, Const. 1868.
Legal Periodicals. - For note on specific performance of separation agreements, see 58 N.C.L. Rev. 867 (1980).
For survey of 1980 tort law, see 59 N.C.L. Rev. 1239 (1981).
CASE NOTES
I. In General.
II. Fraud.
I. IN GENERAL.
Editor's Note. - Some of the cases cited below were decided under former Art. I, § 16, Const. 1868.
Purpose. - The purpose of this section is to prevent use of the criminal process to enforce the payment of civil obligations, directly or indirectly. State v. Caudle, 276 N.C. 550, 173 S.E.2d 778 (1970).
Section Only Applicable to Actions Arising out of Contract. - This section, which prohibits imprisonment for debt, is only applicable to actions arising out of or founded upon contract. State v. Locklear, 21 N.C. App. 48, 203 S.E.2d 63 (1974).
And Not to Tort Actions. - This section has no application to actions for tort; it is confined to causes of action arising ex contractu. Long v. McLean, 88 N.C. 3 (1883). See also, Ledford v. Smith, 212 N.C. 447, 193 S.E. 722 (1937).
A fine or penalty imposed by a municipal ordinance is treated as a debt and, under this section of the Constitution, a person from whom it is attempted to be collected is exempt from arrest. State v. Earnhardt, 107 N.C. 789, 12 S.E. 426 (1890).
A judgment on a note is a debt and the defendant cannot be arrested therefor. Stewart v. Bryan, 121 N.C. 46, 28 S.E. 18 (1897).
Any judgment rendered for nonperformance is a debt and can only be enforced by a levy on the sale of defendant's property. Defendant cannot be imprisoned therefor. Wilson v. Wilson, 261 N.C. 40, 134 S.E.2d 240 (1964).
Costs of Prosecution Are Not Debt. - Costs of prosecution against a prosecutor (upon acquittal of the accused or nolle prosequi entered), or against the accused upon a verdict of guilty, or a fine imposed, do not constitute a debt within the meaning of this section of the Constitution, and hence the defendant may be imprisoned for nonpayment of the same. State v. Wallin, 89 N.C. 578 (1883).
Nor is the duty of maintaining an illegitimate child such a debt as is contemplated by this section. State v. Palin, 63 N.C. 472 (1869); State v. Beasley, 75 N.C. 211 (1876).
Taxes do not constitute a debt within the meaning of the Constitution. State v. Locklear, 21 N.C. App. 48, 203 S.E.2d 63 (1974).
Imprisonment for failure to pay a sum of money is prohibited except to enforce an appropriate judicial order which has been willfully disobeyed so as to constitute contempt of court. Stanley v. Stanley, 226 N.C. 129, 37 S.E.2d 118 (1946).
Punishment for Contempt. - Willful failure of a husband to comply with the court's order to pay his wife an amount for support is a contempt, and can be punished as such by imprisonment, and is not within the constitutional inhibition against imprisonment for debt. Wilson v. Wilson, 261 N.C. 40, 134 S.E.2d 240 (1964).
Specific Performance of Separation Agreement. - The remedy of specific performance of a separation agreement contemplating enforcement by civil contempt proceedings is not available in this State. Sainz v. Sainz, 36 N.C. App. 744, 245 S.E.2d 372 (1978).
The enforcement of support payments provided in an extra-judicial separation agreement is accomplished as in the case of any other civil contract, i.e., through an action for breach of the contract seeking a judgment for sums due. Such an action, sounding in contract, is not enforceable by execution in personam in the form of imprisonment for civil contempt for noncompliance, by reason of the constitutional prohibition against imprisonment for debt. Sainz v. Sainz, 36 N.C. App. 744, 245 S.E.2d 372 (1978).
Plaintiff was entitled to a decree of specific performance ordering defendant to comply with a separation agreement which had not been incorporated into a judicial decree because the available remedy at law for the enforcement of such agreement was inadequate. Moore v. Moore, 297 N.C. 14, 252 S.E.2d 735 (1979).
Payment of Restitution Is Valid Condition for Suspension of Sentence. - Subject to the prohibition contained in this section against imprisonment for debt, except in cases of fraud, payment of restitution by a criminal defendant to the victims of his crime may be a valid condition for suspension of sentence. State v. McIntyre, 33 N.C. App. 557, 235 S.E.2d 920 (1977).
Or for Acceptance of Plea Bargain. - Payment of restitution by a criminal defendant to the victims of his crime may be a valid condition for acceptance of a plea bargain. But when restitution is ordered as result of a plea bargain, it must be to a specific aggrieved party, and this party must be named in the judgment. State v. McIntyre, 33 N.C. App. 557, 235 S.E.2d 920 (1977).
But Not Suspension of Sentence on Condition that Defendant Pay Unrelated Civil Obligation. - To suspend a sentence of imprisonment for a criminal act, however just the sentence may be per se, on condition that the defendant pay obligations unrelated to such criminal act, however justly owing, is a use of the criminal process to enforce the payment of a civil obligation, and lends itself to the oppressive action which this section is designed to forbid. To sustain the suspension of sentence upon such a condition would invite misuse of the practice of suspending sentence. It would substitute for the humane consideration and the objective reformation, upon which the practice ought to rest, an entirely different purpose. State v. Caudle, 276 N.C. 550, 173 S.E.2d 778 (1970).
For an order of restitution to be valid it must be related to the criminal act for which defendant was convicted, or else the provision may run afoul of the constitutional provision prohibiting imprisonment for debt. State v. Froneberger, 81 N.C. App. 398, 344 S.E.2d 344 (1986).
Provisions in probationary judgments which require restitution are constitutionally permissible if they are related to the criminal act for which the defendant is convicted. State v. Bass, 53 N.C. App. 40, 280 S.E.2d 7 (1981).
Cited in Cobb v. Cobb, 54 N.C. App. 230, 282 S.E.2d 591 (1981); Northwestern Bank v. Moretz, 56 N.C. App. 710, 289 S.E.2d 614 (1982); Alexander v. Johnson, 742 F.2d 117 (4th Cir. 1984).
II. FRAUD.
The words "except in cases of fraud" comprehend not only fraud in attempting to hinder, delay and defeat the collection of a debt by concealing property and other fraudulent devices, but embrace also fraud in making the contract, such as false representations, and fraud in incurring the liability; for instance, when an administrator commits a fraud by applying the funds of the estate to his own use, paying his own debts, and the like. Melvin v. Melvin, 72 N.C. 384 (1875).
No Imprisonment for Debt Absent Fraud. - This section clearly means that there shall at least be no imprisonment to enforce the payment of a debt under final process, unless it has been adjudged, upon an allegation duly made in the complaint and a corresponding issue found by a jury, that there has been fraud. Ledford v. Emerson, 143 N.C. 527, 55 S.E. 969, 10 L.R.A. (n.s.) 362 (1906); East Coast Fertilizer Co. v. Hardee, 211 N.C. 653, 191 S.E. 725 (1937).
Section Inapplicable to Contracts Involving Fraud. - This constitutional prohibition against imprisonment for debt has been held to apply to debt in the strict sense of an obligation arising out of contract, and hence would not apply to contracts involving fraud, including fraud in contracting the debt or incurring the obligation. Nunn v. Smith, 270 N.C. 374, 154 S.E.2d 497 (1967).
A party's activities in adding "payment in full" language to a check after it had been cashed by another party, and then attempting to use the check to defeat the other party's claim, constituted fraud within the intent of G.S. 1-410(4) and within this section. Koury v. Meyer, 44 N.C. App. 392, 261 S.E.2d 217, cert. denied, 299 N.C. 736, 267 S.E.2d 662 (1980).
For case upholding the Worthless Check Law as a valid exercise by the State of its police powers, see State v. Yarboro, 194 N.C. 498, 140 S.E. 216 (1927).