13 Abb. Pr. 405 | N.Y. Sup. Ct. | 1862
—It appears from the papers that the proceedings were before Judge Sutherland, as an officer and not as a court. The petition for the writ of habeas corpus was addressed to “Hon. Josiah Sutherland, Justice of the Supreme Court,” who allowed the writ, by indorsing thereon his allowance, as follows: “Allowed, this eleventh day of March, 1861. Josiah Sutherland, Justice;” and was returnable before one- of the justices at the court at chambers. It was returned to him at the time and place therein appointed; and thereupon proceedings were had before him, which resulted in his granting and signing an order for Caldwell’s discharge, on the 27th of March following. The order is entitled at special term, but it is signed by the justice; and such entitling does not vitiate it. It was said (see Matter of the Knickerbocker Bank, 19 Barb., 602) that the mere entitling an order as at special term, which, by law, may be made by a judge out of court, does not vitiate the order.
Hor is the entry of the order with the clerk of any importance on this*motion; such entry cannot affect the question, whether the writ of certiorari, to bring up the proceedings, was regularly issued. I am not aware of any practice which requires an order of discharge, granted by a judge out of court, in a proceeding
The proceeding is before an officer out of court, and while it is well to deposit all papers, in such cases, with the clerk, witH a’ view to their preservation, there is no statute or rule of practice which requires the orders in such cases to be entered.
It appearing, therefore, that Judge Sutherland acted as an officer,—as a judge out of court, in issuing the habeas corpus, and in granting the discharge of Caldwell,—the writ of certiorari was properly directed to him. And following the old practice, it was regular, also, to make the writ of certiorari returnable at general term. The writ, too, was properly allowed by a justice of this court. (2 Rev. Stat., 573, § 69 ; 3 Ib., 5 ed., 892, § 85.) The. question is then, simply, whether, inasmuch as the proceeding was had before an officer in the First Judicial District, the writ, is regular, in being made returnable in the Fourth District.
This is purely a question of practice^ with no statute or express rule of court to control. It grows out of the change in our j udieial system, by which the State is divided into eight districts, each of which has its own general term of the court. In most cases, the Code of Procedure provides for the decision of causes, declaring where they shall be heard and determined, generally requiring them fo-be heard and decided in the district in which the case arose, or the parties, or some of them reside. Sometimes the case is permitted to be carried into an adjoining district ; but the general rule of practice has been to require causes to be heard on review in the district in which the proceeding was had; and it is very manifest that this is a wholesome rule, based on considerations of propriety and convenience.
It is urged that the writ is properly returnable in the Fourth District, for the reason, that the record on which the execution issued, under which the relator was imprisoned, is in the Fourth District. But that fact does not affect the question.
The proceeding by habeas corpus was an original proceeding in the city of New York. The relator was there imprisoned, and there were had the proceedings for his discharge, making the record here sought to be reviewed. The return to the writ of certiorari is made from the papers before the officer, with his
In analogy tó other cases in which the practice is settled, either by the statute or by precedent, I think the writ in this case irregular, for the reason that it is made returnable in the Fourth instead of the First District.
But we are inclined to disregard this irregularity, and"to consider the cáse on the return;—here, however, declaring the practice by which we shall be governed in future cases. We are induced to adopt this course, inasmuch as we entertain no, doubt in regard to j urisdiction, and the case l^as been fully and carefully argued before us.
It is first insisted that the officer had no right to inquire into the regularity of the process under which the relator was imprisoned; it appearing that it was issued on the judgment or decree of a court of competent jurisdiction. But the question is not one of mere irregularity in the process. It is, whether the process is authorized by the judgment of the. court of by any 'provision of law.
The statute prescribes who shall be .entitled to prosecute the writ of habeas corpus; and denies it to persons committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction, or by virtue of any execution issued upon any Such judgment or decree. It also declares that it shall be the duty of the court or officer, before whom the party shall be brought in such writ, to inquire into" the cause of confinement or restraint, and to remand’snch party, if it shall appear that he is detained in custody by virtue of any "such judgment or decree, or of any execution'issued thereon. The statute further declares, that if it appears on the return" of the „writ that the prisoner is in" custody by virtue of civil process, &c., then, such person can only be discharged in one of the following cases, enumerating several, among which
This brings us to the question, whether the execution, under which Caldwell was imprisoned, was authorized by the judgment on which it issued. '
The Code prescribes the mode of enforcing judgments by execution. It declares that writs of execution for the enforcement of j udgments are modified in conformity thereto (§ 283); and gives three kinds: one against the property of the j udgvnentdebtor; another against his person; and the third for the delivery of the possession of real or personal property, with or without damages, for withholding the same (§ 286). In regard to execution against the person, it provides that such execution may he issued, if the action be one in which the defendant might have been arrested, as provided in sections 179 and 181. (See § 288.) The action by Collumb and Iselin against Caldwell and others, was to set aside certain instruments made by Caldwell,' conveying his property, as was alleged, to hinder, delay, and defraud his creditors, and for other relief usual in such cases. In this action, could Caldwell have been arrested under sections 179 and 181 of the Code? Section 179 declares that the defendant may be arrested in either one of the five cases there specified, none of which need here be noticed except the fifth, which provides that a defendant may he arrested who has “ removed or disposed of his property, or is about to do so, with intent to defraud his creditors.” No order of arrest was obtained in this action; therefore, it becomes necessary to look into the
■ But I am of the opinion that no order of arrest is authorized, in an action in equity, to set aside an assignment or other instrument on the ground that it was made to hinder, delay, and defraud creditors,—that subdivision 5 of section 179 has no application to that class of actions. In such case, the creditor has already obtained his j udgment, and the new action is in aid of the former, to reach property, which, in justice, ought to be applied to its payment. The judgment is special; and rarely, if ever, does it direct the recovery of money, except for the costs of the action. In what amount should the party be held to bail ? Should it be in an amount to cover costs ? or in an amount equal to the property fraudulently transferred ? or in the full amount of the judgment? If an order of arrest is authorized in this- class of actions, some amendments of the Code should be adopted to regulate the practice. If the object of holding to bail be to afford security for the payment of-the'debt, no order of arrest need be obtained, where the property fraudulently transferred remains within the reach of the proceeding in equity, and is sufficient to satisfy the claim and costs.
In my judgment, no order of arrest can be granted under subdivision 5 of section 179, except in actions for the recovery of money. This view is strengthened by section 183, which provides that the order may be made to accompany the summons, or at any time afterwards before judgment; that is, before judgment is obtained on the debt or demand, payment of which is sought to be enforced by action. But in the case of an equitable action to set aside a sale or transfer of property for fraud, the plaintiff must have exhausted his remedy at law before he can proceed.
I am entirely satisfied that the order granted by Mr. Justice Sutherland, discharging Caldwell from imprisonment, was right; and that the proceedings had before him on habeas corpus should be affirmed. But'this being on common-law certiorari,"no costs can be allowed. (20 How. Pr., 304 ; 10 Ib., 436.)
Potter, J.—There is but one point in this case, as I regard it, that involves an important principle requiring discussion. The relator was imprisoned upon an execution issued against him upon a judgment dr a decree, in which it had been declared that a voluntary assignment made by the relator was fraudulent and void, as against the creditors of the relator, by reason of some want of compliance with the statute relative to the making of such conveyances; and he had been released from the imprisonment upon habeas corpus, upon the ground that he was not liable to imprisonment in such a case. This raises the question, whether there is a distinction, bet-ween what is called active or meditated fraud,—sometimes called actual fraud, committed with actual intent existing in ’ the mind, and governing the act of the grantor at the time,—and constructive fraud,— to wit, such as is adjudged to be fraud by reason of the doing or omitting to do some act in the precise manner prescribed by law. That is, whether the right to imprison the. defendant in a judgment, at all, depends upon this distinction in the character of the fraud; it being undisputed that the fraud in this case was the latter, viz., constructive fraud.
Cases are found in the books that recognize this distinction, as determining the right to imprison, or at least the right to hold, a defendant liable to arrest. (See Spies a. Joel, 1 Duer, 669 ; Birchell a. Straus, 8 Abbotts' Pr., 53 ; 28 Barb., 293.) It is not difficult to conceive of acts that may be performed in making an assignment through accident, inadvertence, mistake, through the influence of mistaken advice, or of the actual omission to d.o some act, that may be consistent with entire innocence of intent,—made, with ' simplicity of heart,—or even through weakness of mind; and yet, such acts, or -omissions /to act, must still by the settled rules
It is, says Lord Kenyon, a principle of natural justice of our law, that the intention and the act must both concur to constitute the crime. (7 T. R., 510). “Actus non facit reum nisi mens sit reaP True, when the question before the court to be tried is in reference to the law regarding the transfer of properly, or to the weight and consideration of the law of evidence in respect to it,—taking the law as it is now settled, it would not be an easy task if attempted, either to attack or to weaken the very logical reasoning and conclusion of my brother Rosekrans; that we are bound to presume a fraud. He is sustained when the law is so applied,—in such a case, and for such a purpose, —both upon principle and authority.
» The intent may, in such case, be inferred; because it is estab
I concur, therefore, in the views of my brother Bockes, in affirming the action upon the habeas corpus.
Proceedings affirmed.
Present, Rosekrans, P. J., Potter, and Bockes, JJ.