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Masten agt. Scovill.

SUPREME COURT.

MASTEN agt. ScoVILL.

The true criterion for issuing an execution against the person of a defendant

after judgment, is this: Could the defendant have been arrested before judge

ment, under the provisions of the chapter relating to arrest and bail. Not whether an order of arrest has been actually obtained before judgment,

nor whether the pleadings show a statement of facts upon which he might be

arrested. By the Code, the practice is intended to be left as formerly in this respect; that is, a party obtaining judgment must determine for himself whether under the existing provisions of law he can safely arrest the defendant on final process or not. Neither party is concluded by an order of arrest or a

statement in the pleadings. An action may, in form, appear from the pleadings ex contractu entirely, when

in its very essence and gravamen it is ex delicto, sounding altogether in tort. As, for instance, an action against a common carrier, and for a breach of marriage promise, &c. (see Flynn agt. The Hudson River Rail Road Company, ante page 308). (It will be seen that this case concurs with Cheney agt. Garbutt, 5 How. Pr. R.

467, and differs very materially from Gridley agt. Macumber, id. 414, and Corwin agt, Freeland, ante page, 241).

Albany Special Term, December 1851. Motion to set aside execution against the defendant's person. The complaint states that the plaintiff had purchased of the defendant a horse for which he had paid $150, in consideration of which the defendant warranted that the horse was sound, &c.; that the defendant further represented that he had long been acquainted with the horse, and knew all about him, and knew him to be sound, &c. It is then alleged that the horse was, in fact, unsound, and that this was known to the defendant and fraudulently concealed from the plaintiff at the time of the sale. The answer denies these allegations.

The cause was tried by the court. From the decision which forms a part of the record, it appears that it was proved upon the trial that, upon the sale, the defendant fraudulently represented the horse to be sound, whereas he knew him to be unsound, and fraudulently concealed the fact from the plaintiff. Judgment having been perfected for $151.37, an execution was issued

Masten agt. Scovill,

against the property of the defendant to the sheriff of Washington, and returned unsatisfied. An execution against the person of the defendant was then issued to the same sheriff.

This execution the defendant moves to set aside.

J. K. PORTER, for Plaintiff.

J. POTTER, for Defendant. HARRIS, Justice. As I understand the 288th section of the Code, an execution against the person of a judgment debtor may be issued in any case in which the defendant might before judgment, have been arrested under the provisions of the chapter relating to arrest and bail. Whether an order for the arrest of the defendant had, in fact, been obtained, is wholly immaterial. The criterion is the right to such an order. Upon this point I am unable to concur in the views of Mr. Justice EDMONDS, as expressed in Squire vs. Flynn (8 Barb. 169). That learned judge admits that the language of the section is broad enough to authorize an arrest upon final process, where no order to arrest had been obtained; yet he thinks that in actions upon contract, the right to arrest the defendant upon execution should be restricted to cases in which, before judgment, such right has been determined, upon application for an order. I find nothing in this section which justifies this restricted construction. On the contrary, it is declared that whatever the action, whether founded upon a contract or a wrong, if it be an action which, under the provisions of the 179th and 181st sections of the Code, would have entitled the plaintiff to an order for the defendant's arrest, an execution against the person may be issued after judgment, whether the order had been obtained before judgment or not. The criterion is not, whether in any case an order had been ob tained, but, in every case, it is whether it might have been obtained.

Nor can I concur in the opinion expressed by Mr. Justice Hubbard in Gridley agt. Macumber (5 Howard 414), that the complaint should always show that the defendant is liable to arrest. I think it is shown conclusively by Mr. Justice Welles, in Cheney agt. Garbutt (5 Howard, 467), that it was never intended that the facts which rendered the defendant liable to arrest, except so

Masten agt. Scovill.

far as they may be involved in a statement of the cause of actioni itself, should be set forth in the complaint; should any matter, not pertinent to the cause of action, be inserted in the complaint, merely to show that the defendant is liable to arrest, as, for example, that the defendant had removed or was about to remove his property with intent to defraud his creditors, I can see no reason why it would not be treated as redundant or irrelevant.

It has been said that such a construction “would be, virtually, repealing the act to abolish imprisonment for debt, so far as final process is concerned” (Squire vs. Flynn, above cited). But I can not admit the soundness of this argument. Before the Code, as well as since, a party who had recovered judgment, might, at his peril, issue execution against the person of his debtor, in any case, notwithstanding the prohibitions of the act to abolish imprisonment for debt. It was for the plaintiff in the judgment to determine in the first instance, whether he had a case which would authorize the imprisonment of his debtor. If he erred, the court, upon application, would set aside the process, or perhaps, without waiting for this, the party imprisoned might bring his action for an illegal arrest. At any rate, the consequences of such illegal arrest were, and still are, sufficiently serious to secure at least a reasonable degree of caution in the issuing of such pro

I think the framers of the Code intended to leave the practice, in this respect, where they found it, and to allow the party obtaining a judgment, to determine for himself whether under the existing provisions of law the defendant may safely be arrested. In determining this question, neither party is concluded either by an order of arrest, or the statements in the pleadings. The true office of the order of arrest is well stated by Mr. Justice Hubbard in the case already noticed, and the relation of the pleadings to this question is equally well stated in Cheney vs. Garbutt.

The question, therefore, in this, as in every other case, is, whether upon the principles prescribed in the 179th section of the Code, the defendant“ might have been arrested.” For this purpose, the facts as they appear upon the motion are material. If they establish a case which would have sustained an order of arrest before judgment, they will also sustain an execution against the person after judgment. Taking this rule for our guide, there

cess.

Sherman and wife agt. Youngs and others.

is little difficulty in determining the question now in hand. Like the action against a common carrier, the plaintiff's case, as presented in his complaint, would have sustained, at common law, an action upon the contract or in case for the fraud (see Burkle vs. Ellis, 4 Howard, 288; Flynn agt. the Hudson River Rail Road Company, ante 308). But the gravamen of the plaintiff's case, as stated in his complaint, and still more decidedly as established upon the trial, was the fraudulent misrepresentations of the defendant on the sale of the horse. It will not be denied that in such a case the defendant might have been held to bail before judgment. If so, we have seen that he is also liable to arrest upon final process. The motion must, therefore, be denied, but without costs.

SUPREME COURT.

SHERMAN AND WIFE, Appellants, agt. YOUNGS AND OTHERS, Admr's,

&c., Respondents.

The costs on appeal from a surrogate's decree, are not regulated by the Code;

they must be taxed according to the fee bill in force immediately previous

to the 1st July 1848. By $ 471, all proceedings upon appeals from Surrogates' Courts, are entirely

excluded from the operation of any of the provisions in the Code; they must be governed by other statutes.

At Chambers, December 1851. Taxation of Costs. This was an appeal from a decree of the surrogate of Yates county on final settlement. The decree of the surrogate was reversed at the last Monroe general term, with costs, and the appellants' attorney now presents his bill of costs in items, according to the fee bill as it existed prior to the first Monday in July in 1848, for taxation. The respondents' counsel appears, and objects to the power of a justice of this court to tax the costs, and to the right of the appellant to recover costs, except according to title X, part 2d of the Code.

E. Van BUREN, for the Appellants.
J. V. VAN ALEN, for the Respondents.

Sherman and wife agt. Youngs and others.

WELLES, Justice.-Section 303 of the Code repeals all statutes establishing or regulating the costs or fees of attorneys, &c., in civil actions, &c., but allows the prevailing party, upon the judgment, certain sums by way of indemnity for his expenses in the action; which allowances are afterwards specified. Section 318 provides that “when the decision of a court of inferior jurisdiction in a special proceeding shall be brought before the Supreme Court for review, such proceeding shall, for all purposes of costs, be deemed an issue, on a question of law, from the time the same shall be brought into the Supreme Court, and costs thereon shall be awarded and collected in such manner as the court shall direct, according to the nature of the case."

Whether, therefore, the appeal in this case is to be regarded an action, or a special proceeding under section 2, is immaterial, as the foregoing sections are sufficiently comprehensive to provide for the case of an appeal from a Surrogate's Court; and are decisive of the question, unless they are limited and controlled in their operation by 9471, which declares that “ until the legislature shall otherwise provide, this act shall not affect proceedings upon mandamus, or prohibition; nor appeals from Surrogate's Courts," &c. &c.

The counsel for the respondents insists that the section last referred to must be read in the same manner as if the words were, “ this act shall not affect proceedings upon mandamus, or prohibition; nor proceedings on appeals from Surrogates' Courts," &c.; and argues that the word proceedings, as applied to appeals from Surrogates' Courts, refers only to the several consecutive steps to be taken from the commencement to the conclusion of the appeal; such as the notice of the appeal, giving the bond, the surrogate's return, petition of appeal, &c. &c.; and that the making out and taxing or adjustment of the costs, and the judgment of the court allowing them, are no part of such proceedings.

My opinion, however, is that § 471 will not allow of the reading and interpretation of the respondents' counsel. I think its object and intention was to exclude entirely from the operation of any of the provisions of the Code, appeals from Surrogates' Courts, including all the proceedings therein, with the judgment of the appellate court and the proceedings to enforce it; and to leave

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