Opinion by Hawley, C. J.

rel. Brennan v. Cotton, 14 Ill. 415; McKindley v. Rising, 28 Ill. 337; Moore v. Green, 73 N. C. 397; Long v. McLean, 88 N. C. 4; U. S. v. Walsh, 1 Abb. (U. S.) 72.)

In McCool v. State the court said: "The second clause of the section prohibiting imprisonment for debt except in case of fraud, connected as it is with the first clause by the copulative conjunction, would seem to relate to the same subject or class of liabilities, and if so, the immunity contemplated by the second clause would be confined to debts or liabilities growing out of contracts, and not to liabilities resulting from crimes or torts.

In People ex rel Brennan v. Cotton, Treat., C. J., in delivering the opinion of the court, said that the prohibition of the constitution "applies only to actions upon contracts express or implied. It does not extend to actions for torts. The design is to relieve debtors from imprisonment who are unable to perform their engagements. They are exempt from arrest if they act in good faith to their creditors."

The petitioner in this case is not entitled to the immunity given by the provisions of the constitution. "In cases of torts, and where debts were fraudently contracted, or where there is an attempt at a fraudulent disposition of property with intent to delay the creditor, or to deprive him of payment, the body of the debtor is allowed to be seized and confined." (Cooley, Const. Lim. 341; 4th Ed. 422.)

Finally, it is urged that petitioner cannot be imprisoned for the costs of the second suit; that so much of the judg ment as awards his imprisonment for these costs is authorizing imprisonment for a debt pure and simple, and is therefore unconstitutional. No authority has been cited which sustains this view.

Merrill v. Townsend, 5 Paige Ch. 80; Er parte Beatty, 12 Wend. 229; and Prince v. Camman, 3 Edw. Ch. 413, cited by petitioner, have no application to the facts of this The decisions are to the effect that a complainant in chancery, in a suit founded on a contract, where his bill is dismissed and a judgment for costs rendered against him. cannot be imprisoned for the costs. But under the amended

case.

Opinion by Hawley, C. J.

provisions of the code in that state, it has been held that the complainant in a certain class of actions, when his suit has been dismissed, may be arrested and imprisoned for the costs.

In Parker v. Spear, 62 How. Pr. 394, the court, in condemning the law which authorized it, was compelled to declare that under the provisions of the code, in an action in which the defendant could have been arrested and where the plaintiff was unsuccessful, "the attorney for the defendant has the right to imprison the plaintiff to collect his costs."

Bull v. Melliss, 13 Abb. Pr. 243, cited by petitioner, is also inapplicable. There "the credit was given by the plaintiff's and the goods sold, as appears by the complaint, at various times between October 1, 1860, and April 1, 1861. The representations which are charged to be fraudu lent, were made in January, 1861, and afterwards," and the court very properly held that upon these allegations it could not be said "that the whole of the debt for which the plaintiffs have recovered judgment was fraudulently contracted, and it would not be sufficient to justify a ca. sa. upon this judgment that part of it was so."

In Thompson v. State, 16 Ind. 516, the court held that a party could not be imprisoned for the costs in a criminal action. This case was cited as authority in State ex rel. Quinn v. District Court, 16 Nev. 77, where that question was not directly involved; but this rule is strenuously disputed. Thompson v. State was overruled in Me Cool v. State, supra, where the imprisonment of defendant for the fine and costs was sustained.

But, whatever the rule may be in the class of cases above referred to, it seems clear to my mind that, in an action like Russell v. Bergman, the costs are but an incident to the debt, and are necessarily incurred in order to procure the enforcement of the judgment. The imprisonment of petitioner is for the fraud practiced in attempting to evade the payment of any judgment that Russell might obtain against him, and this imprisonment, while in the nature of a pun

Opinion by Hawley, C. J.

ishment, is a coercive means given by the statute and sanctioned by the constitution to enforce the collection of the judgment, and, in all cases of this character, is considered "an element of remedial justice." (Hurd Hab. Cor. 20.) It must therefore necessarily follow that the imprisonment is authorized for the costs which are incurred in using this coercive means to enforce the collection of the judgment, as well as for the amount of the principal debt or demand.

Several other minor questions were argued by petitioner's counsel, some of them relating to alleged errors and irregu larities which it is not, by the established rules of the law, within my province to review. (Ex parte Winston, 9 Nev. 75, and authorities there cited; Peltier v. Pennington, 14 N. J. Law, 312; Ex parte Parks, 93 U. S. 18.) None of them are of such a character as to justify petitioner's discharge on habeas corpus.

Petitioner is remanded into the custody of the sheriff of Washoe county, to be held and confined in the county jail of said county, under the writ of execution in the suit of Russell v. Bergman, until he is legally discharged.

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

STATE OF NEVADA,

JULY TERM, 1884.

[No. 1185.]

THE STATE OF NEVADA, RESPONDENT, v. CHARLEY DAN, APPELLANT.

CRIMINAL LAW-BURGLARY-INHABITANCY

OF BUILDING STATUTES CONSTRUED.-In construing the statutes of this state defining burglary (Stat. 1861, 66; 1869, 65): Held, that the language of the statute is broad enough to include buildings of any kind, regardless of the fact of inhabitancy. IDEM-DESCRIPTION OF PREMISES-OWNER-TENANT-VARIANCE.-Where the premises are described in the indictment, as belonging to a certain person, the further allegation that the premises were occupied by a particular tenant is immaterial, and a failure to prove the latter allegation is not a variance, as its only office was to further identify premises already sufficiently described.

APPEAL from the District Court of the Second Judicial District, Ormsby County.

The facts sufficiently appear in the opinion.

Robert M. Clarke, for Appellant:

I. It is not burglary under the statute of Nevada to

VOL. XVIII-44

Argument for Respondent.

break and enter an unoccupied house with intent to steal, etc. (1 Comp. L. 2365.) A penal statute must be strictly construed. The words of the statute must be construed together and made consistent, and the spirit of the act must prevail. Inhabitancy is essential to complete the crime under the precedent and principal clause, and the subsequent and subordinate clauses must be held to require the like conditions. (Sedg. Stat. and Const. Law 279, note a; City of St. Louis v. Laughlin, 49 Mo. 559.) At the common law, the "house" must be inhabited. It must be a dwelling house. (Rus. on Cr. 746–8.)

II. A breaking having been alleged, it was necessary to prove it as alleged.

III. The averment that the building was a dwelling house occupied by Sadie Ray is descriptive of the offense, and must be proved as laid. A house is not a dwelling unless inhabited. (Bish. Stat. Cr. sec. 279; Whar. Cr. Law, secs. 781-84; State v. Warren, 33 Me. 30.) It is necessary to aver ownership. (Bish. Cr. Pro. 135-9.) And the ownership should be laid in the tenant and occupant; because the trespass is against the tenant, and the proof should support the averment. (Beall v. State, 53 Ala. 460; Russ. on Cr. 806, et. seq.; Whar. on Cr. Ev. secs. 94, 101; Whar. Cr. Law, sec. 932; Roscoe Cr. Ev. 353, 366; People v. Stickman, 34 Cal. 242; People v. St. Clair, 38 Cal. 137; People v. Barnes, 48 Cal. 551; Rodgers v. People, 86 N. Y. 360; Moore v. People, 47 Mich. 639; State v. McGowan, 20 Conn. 245; Ros. Cr. Ev. 85, 88.)

J. D. Torreyson, District Attorney of Ormsby county, for Respondent.

I. The indictment alleges the breaking and entering with force. Proof of an entry without force will be sufficient. (1 Comp. Laws 2365; State v. Watkins, 11 Nev. 30.)

II. It is not necessary that the dwelling house should be occupied or inhabited in order to constitute burglary. Every house for the dwelling and habitation of man is a dwelling house. (2 Bish. Cr. Law, sec. 104; 2 East P. C. 491;