15 Barb. 399 | N.Y. Sup. Ct. | 1853
The principal question involved in this appeal is whether the ancient writ of ne exeat has sur
The proceeding which the plaintiff has instituted against her husband is a civil action, as defined in section 69. Section 178 provides that “ no person shall be arrested in a civil action, except as provided by this act. But this provision shall not affect the act to abolish imprisonment for debt and to punish fraudulent debtors, passed April 26th, 1831, or any act amending the same, nor shall it apply to proceedings for contempts.” The qualifications in the latter clause of the section are worthy of particular observation, because taken in connection with section 179, which defines the cases in which arrests may be made, they indicate the clearest intention on the part of the legislature to leave the law of arrest precisely as it stood before the passage of the code. The whole question turns upon the sense in which the words “ arrested in a civil action” are used. If they are to have the largest and widest possible application, then their effect will be to take away the writ of ne exeat; but if they are to be used in a more restricted and technical sense, and applied to that class of cases where the mandate and the primary object of the process was the arrest of the defendant and retaining him in custody during the pendency of the action, then the existence of the power to issue the writ is entirely consistent with the provisions of section 178. It is worthy of remembrance that until the revised statutes took effect, in January, 1830, the customary mode of commencing an action in the common law courts was by capias ad respondendum. Suits were in some special and particular cases commenced by original writ, by bill against attorneys and officers of the court, and by declaration against the casual ejector in the mixed action of ejectment; but the rule was almost universal to issue a capias. The command of the writ was to take and safely keep the body of the defendant to answer the plaintiff in the action. From the moment of his arrest until the termination of the action and the satisfaction of the judgment or the discharge of the defendant in some of the forms prescribed by law he was deemed to be in actual custody. He was in the custody of the sheriff until special bail was put
The writ of ne exeat bears no resemblance to the mesne or final process of the common law courts. Its primary purpose is
“ When the words (of a statute) are not explicit, the intention is to be collected from the context, from the occasion,- and the necessity of the law, from the necessity felt, and the remedy in view. And the intention is to be presumed according to what is consonant to reason and good discretion. The words-of a statute are to be taken in their natural and ordinary signification and import; and if technical words are used they are to be taken in a technical sense.” (1 Kent’s Com. 462.) The code of procedure is a remedial statute, but no evidence has-been or can be produced, that the power of this court to issue the writ of ne exeat was regarded as an evil or one of the. mischiefs which it was the object of the code to redress. “ To revise, reform, simplify and abridge the rules and practice, forms and proceedings of the courts of record of the state,” was the sole purpose of the code, and not to disarm the courts of the power to exercise their constitutional functions. In all the statutes designed to mitigate the severity of arrest and imprisonment for debt, the authority of the court of chancery to-employ this writ in the exercise of its jurisdiction has been carefully preserved.- The act to abolish imprisonment for debt and>
Bwrculo, Brown and 8. B. Strong, Justices.]
The decision at the special term should be affirmed, with ten dollars costs.