Sawyer v. Vilas

The opinion of the court was delivered by Bennett, J. The important question, presented for cur determination, in this case, relates to the regularity of the execution issued against the complainants. If the execution was wrongfully issued against their bodies, they should succeed with their audita querela. The statute provides, that no person, who is a resident citizen of this State, shall be arrested upon an execution, issued upon a judgment recovered in an action founded upon a contract, express or implied, made or entered into since the first day of January, A. D. 1839. Judgments are frequently classed by legal writers under the head of contracts. Story, in his treatise on contracts, p. 2, makes three .classes, one of which consists of contracts of record, such as judgments, recognizances, and statutes staple. Blackstone, in his commentaries, vol. 3, p. 160, says, it is a part of the original contract, entered into by all mankind, who partake of the benefits of society, that they will submit in all points to the municipal constitutions and local ordinances of that state, of which each individual is a member; and that therefore whatever the laws order any one to pay becomes instantly a debt, which he hath before hand contracted to discharge. Though the term “contract” is usually employed to designate [47] either specialty or simple contracts, yet custom has affixed to the term all species of obligation; and in Sturges v. Crowninshield, 4 Wheat. 122, Ch. J. Marshall has defined a contract to be “an agreement, in which a party undertakes to do, or not to do, a particular thing.” In this definition the consideration is omitted; and it was no doubt intended to embrace all kinds of contract, whether by record, specialty, or parol. Judgments have frequently been held to be contracts, as constituting claims for a set-off, under statutes which provide only for a set-off of claims founded on contract. The effect of a judgment is a merger of the original cause of action, upon which the suit is founded, whether it be in tort, or contract ; and in either case the judgment constitutes a debt, with the same incidents, in the one case, as in the other. The words of the statute are as broad, as they well can be. The statute provides against the imprisonment of the body upon any execution, issued upon a judgment recovered in an action founded upon a contract, express, or implied. We think, then, as the judgment was obtained since the first day of January, 1839, upon which the action was founded, wherein the judgment was recovered, upon which the execution, now sought to be set aside, was issued, that it is a case within the purview of the statute, and that the complainants were, not liable to imprisonment. It has been argued for the defendant; that it does not appear, that the complainants were resident citizens of the state. I apprehend this was not made a ground of objection in the county court. It is to be remarked, that this case comes to this court upon exceptions to the decision of the county court upon a case agreed upon; and, though it is not expressly stated, in the body of the agreement, that Sawyer and Taylor were citizens of this state, yet the original writ and the execution sought to be set aside are made a part of the case,, and in both they are set up as resident citizens of the state. If this; was a false description, it should have been shown to have- been so;. We are not to intend it, in order to reverse a decision of the county court. It is also said, that it does not appear, but that an affidavit had been filed, under the proviso to the statute, which would have entitled the plaintiff to a capias. It may be answered, that it does not appear that one was filed. If the plaintiff claimed any benefit from the proviso, he must have brought himself within it. [48] We have been pressed in the argument with the case of Clark v. Trombly et al., decided in Franklin County in 1845 and not yet reported, — which the defendant’s counsel claim should govern this case. I was not present at the hearing of that case; but, as I understand it, it was an audita querela to set aside an execution. The facts were briefly these. Trombly and Saxe had brought an action against one Uzziel Clark, as principal debtor, and Thomas Clark, as trustee. Clark had been adjudged the trustee of the principal debtor, subsequent to the first day of January, 1839, by reason of a note, which he had executed to him prior to that time, and the trustee had neglected to pay to the officer, who had the execution against the principal debtor, the sum for which he was adjudged trustee. Trombly & Saxe then brought their action on the case, under the 37th section of chapter 29 of the Revised Statutes, against the trustee, Thomas Clark, for his neglect in not paying the sum, for which he was adjudged trustee, and, having recovered judgment, execution issued against the body of the trustee; and the audita querela was brought to set that execution aside. The object of the trustee process is to attach the goods and chattels, and rights and credits, in the hands of the trustee, belonging to the principal debtor. The effect of the adjudication, that the trustee is chargeable, is to create a lien on the effects in the hands of the trustee, belonging to the principal debtor; and the court determine the amount, which the trustee shall pay on the judgment against the principal debtor. If he neglects to pay, the statute gives the remedy by an action on the case. So far as the trustee pays, so far he is discharged on the claim due from him to the principal debtor; but no farther. The judgment, simply, that he is chargeable, has no effect to discharge him. I think the judgment, that the trustee is chargeable, merely operates to bind the effects in the hands of the trustee by the attachment ; and that it does not constitute a contract between the attaching creditor and the trustee. If the trustee neglects to discharge this lien, thus gained by the attaching creditor, the statute provides the only remedy given, which is by an action on the case. This action, thus given by the statute, can not, I think, be said to be founded upon a contract, express or implied; and of course the execution was properly issued against the body. The result is, the judgment of the county court, setting aside the execution, is affirmed.