32 Barb. 83 | N.Y. Sup. Ct. | 1859
By the Court,
There is some difficulty in determining, from the complaint, what is the precise character, of the causes of action therein set forth'—a question nevertheless of considerable importance in determining the validity of the order of arrest.
The leading object of the suit seems to be to recover damages for the injuries and losses the plaintiff has sustained by the fraud of the defendant. This fraud, as alleged, consists in the defendant’s falsely and fraudulently pretending to have been the owner of a tract of land in Iowa, which he induced the plaintiff to take in exchange for a lot of land in the town
The first count alleges, though with unnecessary prolixity and excessive repetition, that on the 30th day of January, 1858, the plaintiff was the owner of certain premises in Chat-ham (describing the same) of the value of $2000 ; that the defendant, intending to deceive and defraud the plaintiff, falsely and fraudulently represented to him, and induced him to believe, that he was the owner of two hundred acres of land in Iowa, (describing the same,) of the value of $2000; that with like purpose to defraud the plaintiff, he proposed an exchange of said parcels of land, the one for the other ; that the plaintiff, confiding in such representations and deceived thereby, agreed to make the exchange; that thereupon it was mutually agreed that conveyances should be made therefor from the one party to the other, respectively'—which was accordingly done—the one conveyance being the consideration of the other, although the consideration expressed therein is the sum of $2000 ; that the defendant, at the time aforesaid, was not in fact the owner of said lands in Iowa, and had no title thereto, all of which he well knew; whereby the-defendant cheated and defrauded the plaintiff out of his said lands at Chatham, which were, on said 30th day of January, 1858, of the value
The second count alleges that the plaintiff, after receiving the defendant’s deed of the Iowa lands, and in full confidence that he thereby became the owner thereof, removed himself and his family, and a large quantity of personal property, to the state of Iowa for the purpose of occupying and cultivating said lands as a farm and homestead for himself and family ; that he found the said lands, but then for the first time ascertained that the defendant was not the owner thereof and had never had any title thereto; that the plaintiff, in removing himself and his family and personal property to Iowa, and in returning therefrom to Chatham, necessarily expended the sum of $300 ; and he claims and demands of the defendant the said sum of $300, and interest thereon from the 16th day of June, 1858, being the day of his arrival at Chatham on his return from Iowa.
The third count claims and demands of the defendant the further sum of $500 for the time of the plaintiff and family in making said journey to Iowa for the purpose aforesaid, and for the hardships necessarily by them thereby endured, and for the injury caused thereby to himself and family, and the diseases thereby contracted by them, and ‘the expenses and charges for medicine and medical attendance necessarily thereby incurred; and for the loss of employment sustained by the plaintiff in removing from Chatham to Iowa, he having been just previously engaged by the Western Bail Boad as a night watchman, at the rate of $20 per month, which employment the plaintiff relinquished for the purpose of such removal to Iowa, and has not since been able to regain his former situation, or to procure much employment in any capacity. “ And the said plaintiff alleges (so this count closes) that by reason of the premises last aforesaid, he has sustained damages to the amount of five hundred dollars, or thereabouts.”
The second count is still less like a cause of action upon contract. Adopting for its foundation most of the allegations contained in the first count, it seeks to recover the expenses of the journey to Iowa, not because the defendant has promised to pay them, not because they are damages necessarily or naturally flowing from a breach of contract express or implied, but because they are damages sustained in consequence of the fraud perpetrated by the defendant upon the plaintiff. I cannot therefore regard this count as sounding in contract.
The third count wears still less such an appearance. It seeks to recover damages of different kinds resulting from the
If we should therefore conclude that the first count was upon contract, it is connected in the same complaint with two other counts sounding in tort. We must therefore examine, first, whether the last two counts, assuming them to be in tort, are of a character which, under the code, justify .an order of arrest; and if not, whether they do not, though coupled with a count under which an order of arrest could have been properly obtained, necessarily vitiate an order granted upon the whole complaint, and not upon the first count alone.
Prior to the non-imprisonment act of 1831, the general if not universal rule was that parties were liable to imprisonment in civil actions. (King v. Kirby, 28 Barb. 52.) After the passage of that act, such may perhaps have still been regarded as the general rule in actions for torts, though the contrary one applied to contracts. But since the code the liability to arrest depends exclusively upon its provisions and the provisions of the act of 1831. The general rule must be regarded as being that a party is not subject to imprisonment in a civil action, and the plaintiff seeking to imprison his adversary, must either in his complaint or in the papers upon which an order of arrest is applied for, show himself expressly within the provisions of the law. All these, except those relating to imprisonment for contempts and imprisonment under the act of 1831, are contained in section 179. They by no means embrace all cases of torts or wrongs. The present case, if coming within the section at all, is embraced under the 4th
The order of arrest is presumed to have been founded upon the whole complaint'—upon each and all the causes of action therein set forth. No discrimination is made between them, and probably none can be made, in the practical enforcement of the order. It is to be granted in certain actions, and only in certain actions; and I think only in actions possessing or accompanied by the insignia of fraud mentioned in the act. There is to be but one judgment and one execution; that is, only one kind of execution, so far as the amount of the debt is concerned. The judgment is homogeneous, and I know of no principle which would justify a practitioner in separating parts of a judgment and simultaneously issuing an execution against property for one part, and an execution against the person, for another. The verdict and judgment would not discriminate how much of it was composed of, or founded upon, one cause of action, and how much of or upon another. The undertaking which the defendant may give, to discharge himself from arrest, requires him to render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment there
The order of arrest, therefore, in this case, covered causes of action for which the defendant was not liable to arrest, and for that reason should, I think, be vacated and set aside. It was not warranted by law. It was imprisoning the defendant for an unlawful cause. It would result in imprisoning his person on final process, and refusing his discharge, except upon condition of paying a demand, for which the law did not authorize his detention. And I think it clear that, for these reasons, the order cannot be upheld. The question has also been substantially decided. (Brown v. Treat, 1 Hill, 225. Suydam v. Smith, 7 id. 182. Miller v. Scherder, 2 Comst. 262. Lambert v. Snow, 17 How. 517.) In Suydam v. Smith, the court, referring to the case of Brown v. Treat, say, (p. 185,) “ The plaintiff had recovered upon all of the counts ; and it was enough to say that where the bailor sues upon the contract—although there may be a misjoinder of other counts— the bailee cannot be imprisoned on the judgment. It was on that ground that the defendant was discharged from the arrest.” In Miller v. Scherder, (2 Comst. 267, 268,) the court of appeals say, “ We do not intend to question the rule laid down in Brown v. Treat, (1 Hill, 225,) as limited and explained by Mr. Justice Bronson, in Suydam v. Smith, (7 Hill, 182,) that where counts on contract and in tort are joined in the same declaration, and a general verdict and judgment are rendered thereon, the plaintiff cannot enforce such judgment by imprisonment of the defendant. In a case thus situated, the plaintiff having elected to join a non-imprisonment cause of action with one of a different character, shall be deemed to have elected to take his remedy against property alone; because the law will not allow him to prejudice the rights of the defendant by mingling his damages.”
The result is, that the order of the special term must be reversed, the order of arrest vacated, and the defendant dis
Wright, Gould and Hogeboom, Justices.]