Rogers v. Dibble , 8 Paige Ch. 9 ( 1839 )

The Chancellor.

Although it is not stated in the affidavit upon which this application is founded that the defendant was a resident of the state at the time he was arrested and imprisoned on this execution, I shall assume the fact that he was so, for the purpose of deciding the question whether he is liable to arrest and imprisonment for the costs in this cause. There is nothing upon the face of the execution which has been issued in this case to show that the suit in which these costs were decreed was founded on contract. No presumption therefore of the defendant’s non-residence can arise from the fact that the sheriff has arrested him thereon ; although he might be liable to an action of false imprisonment for arresting a resident upon an execution which showed on its face that he was not liable to such arrest. It is settled, by several decisions of the supreme court, that if the original action was one in which the parties were exempted from arrest, under the non-imprisonment act, they could not be arrested upon an execution for the costs of a writ of error founded upon the judgment in such suit. (9 Wend. Rep. 430. 13 Idem, 70.) The defendant therefore was not liable to arrest for the costs of the appeals, if he could not have been arrested for the costs in the original suit before the vice chancellor.

Upon a careful examination of the provisions of the act under which this application is made, I am satisfied, however, that this is not a case in which the defendant is exempt from imprisonment on execution founded upon the decree. The statute does not exempt parties from imprisonment upon every decree of this court made in a suit founded upon contract. It is not necessary, therefore, to inquire whether this suit was founded upon the original contract between the defendant and Boardman which by mistake was not properly carried into effect by the subsequent deed that was intended to be given in conformity thereto, or upon the inequitable attempt of the defendant to recover land, by the ejectment suit against the complainants, which had been included in that deed by mistake. The first section of the act provides that "no person shall be arrested or imprisoned on any civil process issuing out of a court of law, or on any execution issuing out of any court of equity, in any suit or proceeding instituted for the recovery of any money due upon any judgment or decree founded upon contract, or due upon any contract express or implied, or for the recovery of any damages for the non-performance of any contract.” (1 R. S. 2d ed. 807.) To exempt either party therefore from arrest upon the process of this court, such process must be an execution issued in a suit or proceeding instituted for the recovery of money due upon some previous judgment or decree founded upon contract, or in a suit or proceeding instituted for the recovery of money due upon a contract either express or implied, or for the recovery of damages for the nonperformance of a contract. But this suit, even if it was founded upon the contract originally made with Boardman previous to the execution of the deed to the defendant, was not instituted either for the recovery of money due upon that contract, or to recover damages for the non-performance of the contract3 for there was no charge or allegation in the bill which would have entitled the complainants to a decree for any money due upon that contract, or for damages for the non-performance thereof by the defendant. The only decree to which they could be entitled, upon the case made by their bill, was a decree to reform the deed 3 or rather a decree for a conveyance to the complainants of the piece of land which was included in that deed by mistake 3 or for a perpetual injunction to restrain the defendant from proceeding at law to recover the land included in the deed by mistake, and to restrain him from using the legal title which he had acquired under the erroneous deed in any manner that was inconsistent with their equitable rights.

The motion to set aside the execution and to discharge the defendant from his arrest thereon is therefore denied, with $10 costs.