Fuller v. Bowker

Christiancy J.: Can a capias ad satisfaciendum be issued on a judgment for damages and costs recovered by the plaintiff in an action of replevin in the Circuit Court? This, though not the first question presented by the record, is the first in logical order, and if decided in the affirmative, determines the cause in favor of the plaintiff in error. It is very clear that imprisonment on an execution in such a case does not fall within the prohibition either of the Constitution, Art. VI, § 33, or of the non-imprisonment act of 1839, 2 Comp. L. Ch. 166. [210] Our statutes nowhere specify or enumerate the particular cases in which an execution may issue against the body; but it is provided generally, Comp. L. §4444, that an execution may issue against the body “in cases authorized by law.” The law by authority of which this may be done, must either be an existing statute or the common law. * We have no statute now in force which authorizes such an execution in an action of replevin. But on the contrary, the only provisions of our statute on the subject seem to refer to cases where the action may be commenced by a capias ad respondendum, and the defendant held to bail. At the time of the passage of the non - imprisonment act, in 1839, the act of April 12, 1827 (Laws of 1827, pp. 239 and 240, Revision of 1833, p. 423) was in force, by the fourteenth section of which suoh an execution might probably have been issued in replevin; and this act seems to have continued in force, and such an execution might doubtless have been issued (notwithstanding the non-imprisonment act) until the Revision of 1838, which repealed the act of 1827. The provisions of this act have never been restored, nor have we been able to find any subsequent provision of statute which would authorize such an execution in the action of replevin, unless in fact such'an execution was authorized in this action at common law, when it would fall within the provision of § 4444 of the Compiled Laws above cited. Was this species of execution, then, authorized in this action at common law ? We understand the common law rule to have been that a capias ad satisfaciendum could be issued in those cases, and those only, in which the suit might have been commenced by capias ad respondendum, or, in other words, when the latter was the immediate process upon the original writ. The only exception to this seems to have been when the defendant was an attorney or officer of the court; in such case he might be taken in [211] execution, though, sued by bill: — 2 Arch. Pr. 276. Originally the capias ad satisfaciendum lay at common law only in trespass vi et armis. But as statutes were subsequently passed, giving the capias ad respondendum as the mesne process in other cases, the capias ad satisfaciendum was held to follow, as a common law incident. But in no case was the latter allowed without the former unless directly authorized by statute: — 1 Sellor's Pr. 513; Comyn’s Dig. Execution, C. 9; Tomlin's Law Dict. title “ Capias," 1 Arch. Pr. 276. By our statute there is no ease in which the arrest of the defendant is allowed on mesne process (or the original Writ) in an action of replevin; and hence by the common law rule, no execution can be issued in the action against the body of the defendant. By the New York Rev. Stat. (vol. 2 pp. 523, 524), the original writ of replevin might in certain cases contain a capias clause: and it was in that class of cases only that imprisonment seems to have been allowed upon the execution:— See Roberts v. Randel, 3 Sandf. S. C. 707. English statutes before or since the Revolution, by which the capias ad satisfaciendum may have been extended to replevin, do not affect the question here, as all English statutes were expressly repealed here by the territorial statute of September 16, 1810: — Cass Code 119; Laws of 1820, p. 460; Laws of 1833, p. 563. We think therefore, there was no authority of law for issuing the writ in question, that it was not merely irregular and -voidable, but absolutely void upon its face. The writ being void, the bail bond was also necessarily void, and could impose no obligation to remain within the county; and, as the obligor must be presumed to have known the law, if he chose to remain in the county, it must be regarded as his own 'voluntary act for which ke can claim no damages: — Allen v. Shed, 10 Cush. 375. The Court therefore erred in allowing the bond to be [212] introduced in evidence, and in admitting the testimony o± Lamphere, to show that the nature of Bowker’s business required him to go out of the county, and that he had been applied to to go out of the county on such business, even though the declaration might have sufficiently alleged those, special damages, which we think it did not. The first, third, fourth and seventh’ grounds ■ of error are therefore well assigned. ¥e think also the Court erred in refusing to charge as requested by defendants, that, “if the jury should find from the evidence, that at the time the bond for. the jail limits was given by Bowker, he was not actually in custody, but had been permitted by the sheriff to go at large, the bond had no legal force, and the plaintiff was under no obligation to remain within the jail limits.” These errors doubtless led the jury to give the verdict of seventy-five dollars damages; as it is difficult to see how, upon any other grounds, they could justly have given more than merely nominal damages. A constructive, or technical arrest seems to have been impliedly admitted in the Court below in the argument and the requests to charge. But, had the point been directly raised, by a proper request to charge, we are by no means satisfied that any arrest whatever could have been properly found from the evidence; for though the officer in his direct examination calls it an arrest, when he comes to explain, on his cross-examination, what he means by an arrest, and states all that was actually done, it appears that he merely told Bowker he had the writ, and that he might consider himself arrested ; he went- wherever he pleased, except that there was an understanding that he should not go out of the county; no restraint was exercised, or attempted or offered to be exercised over him. Had the officer, in addition to what he had said to Bowker, requested him to go with him either to prison or to give bail, or anywhere else in obedience to the, writ, and he had submitted [213] and gone with the officer, this might doubtless have been held a legal arrest; but it seems to be well settled that mere words will not, per se, constitute an arrest (unless perhaps where the officer is iu the room with the person to be arrested, and the words indicate an intention not to allow the p^rty to leave at his pleasure, when the officer may be said ‘to have him in his power) : — George v. Radford, 3 C. & P. 464; Russen v. Lucas, 1 C. & P. 153; Chinn v. Morris, 2 C. & P. 361; Pocock v. Moore, 1 Ry. & M. 321; and see Gold v. Bissell, 1 Wend. 210. But in Arrowsmith v. Le Mesurier, 2 N. R. (4 B. & P.) 211, the voluntarily going with the officer to the magistrate, without any declaration of the officer that he arrested him, was held insufficient to maintain an action of trespass and false imprisonment; and the voluntary giving of bail can not make an arrest nor constitute an imprisonment where there has been no arrest in fact (though the party arrested might be estopped by the bond to deny the arrest): —■ Bieten v. Burridge, 3 Camp. 139; 1 Salk. 79. The judgment must be reversed, with costs, and a. new trial granted. Manning and Campbell JJ. concurred. Martin Ch. J. did not sit in this case.