Howland v. Needham, 10 Wis. 495

Howland v. Needham

10 Wis. 495 | Wis. | 1860

J5y the Court,

Dixon, C. J.

The record in this case presents one question which, is decisive of the action. It is whether an execution can issue against the body of a defendant upon a judgment for damages for the withholding of real property, and the rents and profits, where, pursuant to section 83, of the Code of Procedure, a claim for such damage was united in the complaint in an action for the recovery of such property. To determine it we have only to ascertain whether the damages recovered arose out of, or were founded upon a contract expressed or implied.

The sixteenth section of the first Article of the Constitution, provides that no person shall be imprisoned for debt arising out of, or founded on such contract In other cases the judgment debtor may be imprisoned under such regulations as are prescribed by statute. That ejectment was an action ex delicto, is clearly indicated by its name of “ action of trespass in ejectment,” 3 Black. Com., 199.- It is also clear that the wrongful receipt by the tenant in possession of the mesne profits, or the withholding of the possession from the lawful owner has always been regarded as a tort, for which, by the common law, an action of trespass might be maintained. In *498treating of the action of ejectment, Blackstone, vol. 3, p. 205, says: “ The damages recovered in these actions, though formerly their only intent, are now usually, since the title has been considered the, principal question, very small and inadequate ; amounting, commonly, to one shilling, or some other trivial sum. In order, therefore, to complete the remedy, when the possession has been long detained from him, that had the right to it, an action of trespass also lies, after a recovery in ejectment to recover the mesne profits which the tenant in possession has wrongfully received.” The unlawful detention of the possession is considered in the law as a wrong, and as such redressed. We. do not see how it can be otherwise regarded. The record of the action of ejectment, in which the judgment for damages in this case was ren-. dered, appears wholly-unconnected with any contract. The fact that the remedy by action of trespass has never obtained in this state, in no way affects or changes the nature of the injury complained of The suggestion on the roll provided by the statutes of 1849, was substantially the same thing. So in the claim for damages which the plaintiff is now permitted to unite with his claim of title, and for possession. Both are substitutes for the action of trespass. The legislature may change the form of the action, but its essence is beyond their reach. They can declare that there shall be but one form of action, but they cannot thereby convert torts into contracts, or contracts into torts. The principles upon which they are distinguished, are above .legislative influence. The exemption from imprisonment extending no farther than to cases of debt arising out of contract express or implied, the plaintiff was liable to the arrest complained of.

Judgment reversed.