In re Sweatman

Curia. It is supposed that the prisoner is entitled to his , . . , discharge, because the judgment of the Justices is so entirely indefinite and uncertain, as to render the whole void. We think differently. The power of this Court of special sessions is derived from the statute; by which it will be perceived that, on conviction, the Justices are authorized toim- . posc a fine or imprisonment, or both. These are distinct punishments. They do not necessarily stand or fall togeth; er. As we read the judgment, Sweatman is unconditionally sentenced to imprisonment for 30 days. This branch of the sentence is certain, and being disconnected with that part 1-1 1 n ..... . , . , , which awards a fine, and the term not having expired, the prisoner must be remanded for the residue of that term at least. With regard to the other branch of the sentence there is more difficulty. But, without determining whether it be void, as uncertain or contingent, we are satisfied, on an [150] other ground, that the Justices have no power, in any shape, imprison 4 months absolutely, for non-payment of a fine imposed under this statute. The fine is limited to 25 dol*ars—imprisonment to 6 months. Under the latter clause of the statute, their power was exhausted when they pronounced the sentence of imprisonment for 30 days. The term of imprisonment for non-payment of the fine is limited by another statute, not adverted to in the argument. The aC^/"°r the relief of debtors, with respect to the imprisonment of their persons, (sess. 36, ch. 81, s. 1, 1 R. L. 348) prov^cs> “ that every person, not being a freeholder, who shall he confined in gaol upon any execution or other process, or by virtue of any judgment or order of any Court of Justice, 0r by warrant from any Judge or Justice, for any debt, sum ^ ° J 3 of-money, fine or forfeiture, not exceeding twenty five dollars, exciusiYe °f costs, and shall have remained in gaol for thirty days, if not detained for any other cause, shall be discharged from imprisonment by the keeper of the gaol, on application to him by the person so confined.” The terms of this act are sufficiently broad(d). to meet the case under consideration ; and we have no doubt, that it is one of the cases intended by that act. The Justices might perhaps have ad [151] judged that the convict be committed for 30 days absolutely, v o . . » • for the non-payment of the fine ; but, upon this point, it is not necessary to give an opinion. A sentence of imprison- ' ment, for an indefinite term, if valid, is controlled by this act, and cannot be extended beyond the 30 days, if the party be. not a freeholder. In this view of the case, the Justices clearly exceeded their jurisdiction, in awarding the 4 months imprisonment, unqualified by the terms of this statute. As to this the sentence is void, and inoperative even for 30 days of the additional term. The prisoner must, however, be remanded for the residue of the first term of -30 days.(e) they may sentence to a term ment’mTexmonths' and then to 30 mmt^hedde" for non-payQuere. Their power to imprison, for not paying up“n’thePstaU ute, (sm. 36, ¿j 24s.j 1 [151] Rule accordingly. Footnotes [(d)] The words judgment or execution, though tiie words or other process were omitted, seem to be broad enough to reach a conviction and commitment by a special session. In Rex v. Vipont and others, (2 Burr. 1165,) Ld. Mansfield says, that every conviction ought to contain a judgment1 of the forfeiture, and at p. 1166, Wilmot, J. says that a conviction is equal to a verdict and judgment; that there must be a judgment of forfeiture in a conviction ; that there must be a judgment to levy it; for every execution is founded on a judgment. The same language was held by Ld. Kenyon, in Rex v. Harris, (7 T. R. 238,) and vid. Nares on Penal Convictions, 57 to 71. The warrant for the purpose of levying the fine, or committing the offender, is sometimes said in the books to he in the nature of an execution, (id. 64,) and sometimes is called an execution, (id. 65.) So that imprisonment upon a summary conviction, by our special sessions, seems to come not only within the spirit, hut the very words of the 1st section of the act for the relief of debtors, See. In tiie higher courts, the analogy between a conviction and fine, and a judgment for a debt or damages in a civil action, is perfect. In The King v. Wade, (Skin. Rep. 12,) upon a conviction and fine of 1001. for barratry, it was levied by levari facias; and in the same case, reported in SirT. [151] Jones, 185, it appears that a capias was first issued for this fine, and after-wards a levari facias ; and, in 2 Show. 173, the same case is mentioned, by the name of The King v. Webb, as one where a levari facias issued even after the defendant’s body was in execution. In 1819, this writ of lev. fa. was hunted out in the Crown office, and the form thereof is given in 1 Ch. Rep. 431-2. Accordingly, in the great case of The King v. Woolf et al. (1 Ch. Rep 401 to 443,) a similar writ was, under the advice of Mr. Chilly, issued against Woolf, for 10,0001. fine, for a conspiracy, and goods were taken thereon, to 8,0001.; and that too, after the defendant, W. had been committed for a term of imprisonment, pursuant to the sentence of the Court; and on motion to set the same aside, the K. B. held it regular. And some of the Judges held, with the case in Shower, that, had he been in prison for the fine, this would not vary the right to a lev. fa. and it was hoiden that it might issue out of the Court which imposed the fine, as well as the exchequer; for that the imposition of the fine, constituted a debt of record due to the King, like any other judgment. [(e)] It seems that, in England, a fine does not come within any general act for relief from imprisonment, or insolvency, (1 Ch. Cr. L. 811, and the eases there cited. Rex v. Norris, 4 Burr. 2142.) The first act, authorising a trial for petit larceny, by a special session, composed of three Justices, was passed by the legislature of the late colony of New-York, Sept. 1st, 1744. (1 Smith & Livingston, 339. Van Schaick, 240.) Petit larceny is not mentioned in this act, but jurisdiction is given of misdemeanors, breaches of the peace, and other criminal offences under the degree of grand larceny ; and the Justices (one whereof to he of the quorum) are authorised to inflict corporal punishment, (not extending to life or, limb.) By an act of the same date, (id. 340, ibid. 241) the same jurisdiction is given to the Mayor, Deputy Mayor, Recorder and Aldermen, for the time being, or any three of them, in the city of New-Tork,—Bythe 3d sec* [152] ^on °f the first mentioned act, the Justices might, in lieti of corporal pun» ishment, fine not exceeding 3Z. After the revolution, by the act of the 24th March, 1787, the same powers were extended to three Justices, and to the Mayor, Recorder and Aldermen of the city of New-Yoik, or any three of them, of whom the Mayor or Recorder was to be one. They were, however, not to punish beyond 39 lashes in one day. The Mayor, &c. might, moreover, sentence to hard labour in Bridewell, &c. not exceeding the term of six months ; or might inflict corporal punishment or imprisonment at hard labour only, as they should d^em expedient. The Justices were confined to 39 lashes per day, a nd were not allowed to fine over ten pounds, which, when imposed, was to he instead of corporal punishment. (2 Jones & Varick, 127 to 131. 1 Greenleaf, 422 to 425 ) The law stood thus, till the revision of 1801, by Kent Sc Radcliff, when it was modified, and the punishment restricted to imprisonment or fine, or both, as the law now stands in the revision of Woodworth & Van Ness. The 1st section of the act for the relief of debtors, with respect to the imprisonment of their persons, which relieves from imprisonment for a fine, was first passed Feb. 13th, 1789. (2 Jones & Varick, 409. 2 Greenleaf, 231.) At first it extended to all persons, whether freeholders or not. In other respects it is still the same as when first enacted. By the act of the 24th March, 1801, it was confined to persons not being freeholders, (1 Kent k Radcliff, 290) and has so continued since that time.