84 N.Y. 410 | NY | 1881
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *412 This is an action against a sheriff for an escape. Maxwell, the prisoner, had been taken into custody by the sheriff on an order for arrest, in an action on a contract, and was after that duly charged in execution against his body on a judgment in the action and held by the sheriff thereon. While he was so held, the county judge of Suffolk county made an order exempting him from imprisonment by reason of any prior debt. This order having been exhibited to the sheriff, he suffered Maxwell to go at large. This act of the sheriff is the escape for which he is sued. It does not appear that the sheriff, when he let Maxwell go, had any knowledge or information *414 of the proceedings before the county judge, other than what was given to him by the order of discharge and the recitals in it.
It is settled that if an order of that kind contains recitals of all the facts needed to give jurisdiction to the officer granting it, the order alone will protect the sheriff in releasing the prisoner; that if it does not contain those recitals, the sheriff will be protected if he can show, aliunde
the order of discharge, that the needed facts existed. (Bullymore v. Cooper,
1st. It is contended that the fifth article (2 R.S. 28) has been repealed, by implication, by the act to abolish imprisonment for debt (Laws of 1831, chap. 300). We do not think that the provisions of the two statutes are so inconsistent and incompatible as that the former was impliedly repealed by the latter.
2d. It is contended that the old Code (§ 179), having provided that where a debtor has been guilty of fraud in contracting the debt or incurring the obligation, he may be arrested, a statute is not consistent with it that will exonerate him from imprisonment; as that would be to nullify the Code. We are not able to so hold. The obligation is still one arising on contract. The debtor would not be liable to arrest but for the fraud, but that is only a case of exception from the general exemption from arrest on contract. It is still a case of contract, a case of debt. The statutes unrepealed provide for a discharge from imprisonment by reason of any debts arising upon contracts previously made. We do not find in the Code, the intention of the legislature, that where the debt was created in fraud, the debtor should never be exonerated from imprisonment for such a debt on complying with the provisions of laws.
3d. It is contended, that as a discharge under article 5 shall be void if the insolvent shall be guilty of any fraud whatever contrary to the true intent of the article (2 R.S. 23, § 35, subd. 7), that it follows that a discharge from a debt contracted in fraud is void. Our opinion is, that the fraud that renders a discharge void under the statutory provisions referred to, is one done in the proceedings under the statute to obtain a discharge, and not a fraud that has gone before and in which the making of the debt was involved.
4th. It is further contended that the fifth article did not contemplate *419 the case of a debtor who had already been charged in execution as Maxwell had been in this case. But the first section of article 5 provides for a petition that the person of the debtor be exempt from arrest, and that if he is in prison, he may be discharged from imprisonment. Section 11 provides that if the insolvent be in prison, in any suit upon any contract, he shall be discharged. The sixth article relates only to cases where persons imprisoned on execution in civil cases propose to assign their property for the benefit of the creditors by whom they are imprisoned, and thereupon to be discharged from that imprisonment alone. (1 Seld. 121, 123, and note.) The fifth article is more general in its scope, and takes in all creditors and all imprisonment on contract, and includes the execution creditor with the rest.
In addition to these objections, it is urged that the proofs made by the defendant show lack of jurisdiction in the county judge. Should this be granted it would not avail the plaintiff. The defendant was not shown to have known, at the time that he let Maxwell go, of any defects in the proceedings. All that he had for his guidance, as it appears, was the discharge. In so far as it showed jurisdiction, so far it protected him, and he is not affected therein by the existence of facts though variant from it. In so far as it did not show jurisdiction, if the fact existed, that in that respect gave jurisdiction, he is thereby protected.
It is further contended, that the learned justice who tried the cause at Circuit had not power to take a verdict for the plaintiff and to reserve the case for further consideration before rendering judgment, and then to render judgment for the defendant. It is likely that the practice in the case has not been technically accurate. But it seems to have been had without objection from either party, and there is no exception that brings the error, if any, to our notice. There is an exception to the judgment, but none to the mode which the court took to reach a judgment. There is no controverted question of fact in the case. The questions to be determined are purely legal, and though the mode taken to reach a final determination *420 of them, may not have been strictly formal, both parties have acquiesced in it, and sought the judgment of the courts below without resistance to the case being entertained and adjudicated there.
It is contended that it is not pleaded nor proved that Maxwell was let to go by reason of the discharge. The answer sets up the discharge, and avers that thereupon Maxwell was discharged from imprisonment. It was proven that the discharge was handed to the defendant and that he was asked if Maxwell would be let to go, that the defendant took time to advise with his counsel; and that the next day Maxwell was at home beyond the liberties of the jail.
There can be no inference reasonable, but that in consequence of the mandate of the discharge the debtor was set free.
The judgment should be affirmed.
All concur, except RAPALLO, J., absent.
Judgment affirmed.