Adams v. Wait

42 Vt. 16 | Vt. | 1869

The opinion of the court was delivered by

Pierpoint, C. J.

We see no error in the ruling of the county court in admitting the several depositions referred to, and which were objected to by the defendant. Both issues presented upon the respective motions of the parties being on trial before the court at the same time, we think all the said depositions were admissible upon one issue or the other, and most of them upon both.

We think the certificate of Williams, as register in bankruptcy, was properly excluded, as not properly authenticated, and as being immaterial to any issue then before the court.

The defendant claims that the court erred in granting the certificate, that the cause of action arose from the wilful and malicious act or neglect of the defendant, and that he ought to be confined in close jail, as provided for in section 24 of chapter 121 of the General Statutes.

When the plaintiffs commenced their suit in this case they procured a writ against the body of the defendant, by filing an affidavit that the defendant was about to leave the state, etc., according to the provisions of section 76 of chapter 33 of the General Statutes; and having obtained judgment in the suit, the defendant now insists that the plaintiffs can have execution against the body only by filing another affidavit as required by such section, or at least by complying with the requirements of section 77 of the same chapter ; neither of which it is conceded was done in this case. Under these sections the plaintiffs are entitled to an execution against the body of the defendant, on filing their affidavit, as required with the authority issuing such execution. In such case the execution against the body is not based upon any finding or determination of the court that rendered the judgment, and no certificate is required to be attached to such execution, as to how the cause of action arose; the execution is not what is ordinarily called a close jail execution, but the defendant, if committed, is entitled to bail, and may avail himself of the poor debtor’s oath, etc. But the proceeding under section 24 of chapter 121 is of an entirely different character. No affidavit of the plaintiff is required, and it is wholly immaterial how service is made upon the defendant, whether by arrest of the body or by summons. The character and effect of the execution is made to depend upon the judgment of the court as to whether the cause of action arose from the wilful and malicious act or neglect of the defendant. The language of the statute is: “ In any action hereafter tried, in any court in this state, against any person, or persons, for the recovery of money, or other property, by such person, or persons, held in trust, or in any fiduciary capacity, if it shall appear to the court before whom such action shall be tried, that any defendant or defendants, converted said money, or other property, to his or their own private use, or diverted or misapplied the same or the use thereof from its proper legitimate and legal destination, it shall be the duty of said court to adjudge that the cause of action arose from the wilful and malicious act or neglect of such defendant or defendants, and that such defendant or defendants ought to. be confined in close jail, and issue execution against the body, etc., with a certificate thereof, stated in, or endorsed upon, such execution,” etc. A demand and refusal is not required here, as it is in the affidavit filed under section 77 of chapter 33, and is material only as it may have weight with the court in determining whether the act was wilful and malicious. It appears that the court below found all the facts requisite under section 24 to make it their duty to adjudge the act wilful and malicious, and to issue execution against the body with a certificate thereof attached.

But it is said the cause of action in this case arose in Illinois, and that no such mode of enforcing judgments in such cases exists there. Whether the transaction between the parties created a cause of action in Illinois is a question that would depend upon the law of that state, but when the cause of action is established, and a judgment rendered thereon here, the mode of enforcing that judgment is determined by the law “of this state, it having reference solely to the remedy.

The judgment of the county court is affirmed.