Armstrong v. Ayres, 19 Conn. 540

19 Conn. 540 | Conn. | 1849

Church, Ch. J.

If the views of the defendant, of the nature of this action and the true character of this declaration, are correct; and if, as he claims, the proceedings under it, should have been regulated by the statute of 1838, “ Abolishing imprisonment for debt,” then the officer serving this process, had no right to exact this bail bond : it would be. void, and the motion here filed, by himself and his bail, should prevail, and the defendant be permitted to plead to the action, without special bail. If the defendant is entitled to any relief under the law, we discover no objection to the summary relief sought by the motion. But we think, the bond valid, and that the officer was justified in requiring it.

The statute of 1838, which, the defendant supposes, should have governed the conduct of the officer arresting him, relates only to actions founded on contract. If this be such an action, ,the body of the defendant should not have been arrested at all ; for the statute of 1842, abolishing imprisonment for debt, prohibits all arrests and imprisonments upon process, mesne or final, founded on contract merely. The act of 1838 is inconsistent with this, and is repealed by it. There could, therefore, have been no proceedings under that act, which allowed arrests of the body in actions on contract, in a modified form of procedure.

We are aware, that the claim of the defendant is, that this is not an action founded on contract merely, nor an action for tort; but an action combining fraud and contract; and therefore, is not reached, by the statute of 1842. The gist of all actions, we suppose, to be either ex contractu or ex delicto : — i. e., they sound either .in tort, or contract; and this statute did not intend to abolish the distinction.

The plaintiffs, in instituting and prosecuting this action, supposed themselves to be acting entirely under the law of 1842. They supposed, they were suing in an action for a fraud, under that law ; and it becomes important, therefore, that its provisions be examined.

That some of the enactments of that statute, are obscure, and will probably give rise to dispute hereafter, we believe ; yet so far as the present question is concerned, we think the intention of the legislature is most obvious, as we learn it from the language of the law and its general purpose.

Inability to pay debts, was no longer to be treated as deserving imprisonment; and this remedy for the collection of debts, was considered as too harsh ; and the legislature, in very positive language, abolished it, by the introductory clause of the statute. But all other causes of action enumerated under the proviso, were left to be enforced as before. And remedies by action on the case for fraud, were provided, even beyond former limits, so that all tort-feasors and fraudulent debtors should be discouraged and checked, by danger of imprisonment.

The present cause of action falls clearly within those enumerated under the proviso, to be enforced by imprisonment, if necessary. It is an action on the case, for fraudulently assigning, conveying and concealing a debtor’s property away from his creditors, and away from legal process, — a remedy not before existing, but expressly given by this statute. Smith v. Blake, 1 Day, 258. It is an action for fraudulently and collusively obtaining a credit and contracting a debt. It is a strongly marked action in tort.

It can make no difference in the construction or effect of this statute, that the several causes of action, except that in its introductory enactment, which are particularly enumerated, are included, under what the legislature was made to call, a proviso. Notwithstanding this form, this part of the law was chiefly intended as an enacting one; although, in some respects, it performs the office of a proviso, by way of exception or modification of the enacting clause standing before it; as in the cases of promises to marry, actions against a public officer, or a person acting in a fiduciary capacity, &c., the remedies for which are, or may be, in form, ex contractu.

It is claimed, by the defendant, that this action, although in form, ex delicto, is essentially an action founded on contract ; that its object is, to recover the debt described in the declaration, and that the rule of damages must be the amount of that debt; and therefore, his body was not subject to arrest, even under the statute of 1842. We do not decide, that the rule of damages must be the amount of the plaintiffs’ debt, or that it can be recovered in this form of action. But if it were so, this would not prove, that the action is founded upon contract merely, or even essentially. But fraud is here an essential ingredient in the action itself; it is not merely attached collaterally to the character or conduct of the defendant; it constitutes the gist of the action, and without proof of it, there can be no recovery, however well fhe debt may be established. Under the common law forms of pleading, not guilty would have been the only proper general issue to this declaration. Westcott v. Carder, 2 Day, 418. Bulkley v. Storer, Id. 531. The action in this form, is brought, by virtue of the new power and remedy, given by the statute in question, and is one of the specified causes of action, in which the power of imprisonment has not been taken away. No count in this declaration could be joined with a count upon the notes; it would be a palpable misjoinder of counts. If the action had been brought upon the notes, as upon promises, in the usual form ; and the pleader had introduced all these charges of fraud, they would have been only matters of surplusage, so far as the right of recovery is involved, and need not have been proved. The gist of the action would have still been founded upon contract merely, and no imprisonment could have followed.

Our views of this statute are confirmed, by a recurrence to the late revision of the laws. In that revision, this statute of 1842 has been dissected, and so as to leave no doubt of the opinion of the revisers, and of the legislature, regarding its proper construction, in the particulars we have referred to. So much of it as exempts the'body from imprisonment, is contained under the title “ Civil Actions,” sec. 194., page, 104 : and so much as subjects to imprisonment, is found under the same title, sec. 283. page 130., under the head of “ Trespass on the case,” and embraces the personal action. We are all very clear, that, as this is an action for a tort, the defendant and his bail can take nothing by this motion.

In the argument, questions were suggested, which it was supposed might have some bearing upon our present decision, and to which we have not adverted, in this opinion ; such as what must be the rule of damages in cases of this character, if they are to be treated as actions in tort; and what may be the effect of a recovery here, upon a future action brought upon the notes ; or how a recovery here will bear upon an action brought by some other creditor, for the same fraud here complained off

We advise that the motion filed in this case, should be denied, by the superior court.

In this opinion the other Judges concurred.

Motion to be denied.