Witt v. Marsh

The opinion of the court was delivered by Williams, Ch. J. Both of the above cases depend on the same question, and have been submitted together. They áre actions of debt on jail bonds. The plea in the one case, discloses that the judgment, on which the execution issued, whereon Marsh was committed, was rendered in an action on book, and that the principal part of the account accrued before the first of January, A. D. 1889. In the other, that the principal part of the account accrued after that time. The question is, whether, under the existing law, the plaintiffs were entitled to the executions against the body of Marsh, the debtor, and whether the commitments thereon were so far legal that the defendants are liable on their jail bonds. The question is now presented to the court, for the first time, and is somewhat embarrassing, arising from the [305] nature of the action on book. In the action on book, all the accounts between the parties, although running ever so long, up to the time of auditing the account, must be sued for in one action, and there can be but one recovery and one judgment. On all judgments rendered on contracts accruing before the first day of January, A. D. 1839, the creditor was entitled to an execution against the body of the debtor, with some exceptions which it is not necessary to mention. On judgments rendered on contracts, express or implied, made or entered into after that period, no writ or execution could issue against the body of the debtor, if he was a resident citizen of this state. In the statute which took away the remedy against the body of the debtor, for contracts made or entered into after the first day of January, 1839, no provision was made for a case where the judgment was rendered on different contracts, some of which were before, and some after that date. But we think, that if a party voluntarily embraces in one declaration several counts or different contracts, on some of which he would have been entitled to a capias and on the others would not have been so entitled, he cannot, on such judgment, have an entire execution against the body of his debtor. The same principle would apply to a recovery in the action on book, where part of the demand was since the passing of the statute abolishing imprisonment. Indeed, unless some legislative provision is made, we cannot issue, on one judgment, an execution for part of the debt against the body, and for the other part against the property alone. Where the creditor continues an account after the first of January, which had commenced before, and brings an action on book to recover therefor, it may be considered as a voluntary blending and uniting in one judgment claims on which he might have been entitled to different remedies. Whether, by resorting to any other form of action, a judgment could have been rendered for the amount due from the defendant, for which the plaintiff could have had execution against his body, and another for the amount due when he ceased to have that remedy, is not for us to inquire. It has been contended, in this case, on the one side, that the whole contract may be considered as one made at the [306] commencement of the account between the parties, to pay any balance which might thereafter be found due; and, on the other side, as a contract after the account had closed, to pay the balance. Neither of these views is satisfactory as showing that the plaintiff was entitled to one remedy alone for the whole of the demands due from the defendant. Up to the first of January, 1839, the creditor had a remedy to recover what was due to him at that time, by attachment or execution against the body. After that time, he had no such remedy. By uniting them together and obtaining one entire judgment, he cannot have such remedy for that part of the demand accruing after the first of January, 1839, which he had for the amount accruing before, and can, therefore, take only such an execution as the law now gives, for the collection of demands lately contracted. It is made a question whether the defendants can avail themselves of this as a defence to the jail bond. It is to be remembered, however, that we have repeatedly determined, that,in such an action, the defendant may contest the legality of the imprisonment. He can show that no such judgment was rendered, or no such execution issued as was described in the jail bond, and, however the execution and. judgment may protect the party, in an action for false imprisonment, yet, it would be wholly superfluous to require a defendant first to set aside the execution, before he could defend against the suit on the jail bond, by showing the irregularity of the commitment. In the present cases, the executions were illegal, as having been issued against the express provisions of the statute. The judgments of the county court are therefore reversed.