Gilman v. Perkins

Parker, C. J. The statute of June 30, 1818, enacted, that no person should be committed to gaol, or be liable to be imprisoned on any execution issued, on any judgment, founded on contract made or entered into after the first day of January, then next, unless the original debt or damage, in such process or execution, should exceed the sum of thirteen dollars and thirty-three cents; (being the limit of the jurisdiction of justices of the peace;) and that it should be the duty of the clerk of the court, or justice of the peace, who might issue execution upon any such judgment, so to vary the form of the execution, that it should not run against the body of the debtor. This provision has been substantially retained since that time. We have no doubt, that this statute is applicable to judgments in actions founded upon a previous judgment, if the first judgment was founded upon a contract made after the first day of January, 1819. Were it otherwise, the statute might easily be evaded. 2 N. H. Rep. 491. Whether it applies in actions on judgments having their origin in torts, need not be settled at this time. And we are of opinion that the judgment, on which no execution could lawfully issue against the body, operated, ipso facto, as a discharge of the bail. So long as the bail is liable, he “ has the principal on a string.” Rut on the rendition of the judgment, this string was severed. The bail had no longer any right to take the principal. There was nothing on which to deliver him, for there was nothing on which he could be committed. If, on the rendition of the judgment, the defendant had brought the principal into court, and offered to deliver him up, the court could not have ordered him into custody, because the judgment did not warrant a commitment, or an execution on which he could be committed. And the issuing of an eie* [346] cution against his body, afterwards, cannot alter the case. It cannot restore the liability. It was unlawfully issued, and might be set aside. Judgment for the defendant.