35 Barb. 444 | 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 allow
Uor 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 on habeas corpus, to be entered. The code has no application to these proceedings. (Code, § 471.) But the former practice still prevails, in such cases.
The proceeding is before an officer out of court; and while it is well to deposit all papers in such case with the clerk, with a view to their preservation, there is no statute or rule of practice which requires the orders in cases of that nature 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 R. S. 573, § 69; 3 id. 892, § 85, 5th ed.) The question is then simply, whether, inasmuch as the proceeding was held before an officer in the first judicial district, the writ is regular in being made returnable in the fourth district.
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 certificate of the proceedings and determination. Where the evidence used on that proceeding was obtained has no controlling influence, in determining where the review should be had. The question is simply whether it is permissible for a party to take a case for review on certiorari from the district in which the proceeding was had, to any other which the applicant for the writ may select. To allow this would be against all analogy in practice, and would be conducive, often, of great inconvenience,
In analogy to 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 in the first district.
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 or by any provision of law. 1
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 any 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, on such writ, to inquire into the cause of the confinement or restraint, and to remand such 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 appear 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 are the following: when the process, though in proper form, has been issued in a case not allowed by law, and where the process is not authorized by any judgment, order or decree of any court, nor by any provision of law. (2 R. S. 568, §§ 40, 41; 3 id. 887, §§ 55, 56, 5th ed.) By declaring that the prisoner can only be discharged in certain cases when in custody under civil process, it is clearly implied that he shall be discharged in such cases; i that is, when it should appear on the return of the writ'
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 judgments are modified ■ in conformity thereto, (§ 283,) and gives three kinds—one against the property of the judgment debtor—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 executions against the person, it provides that such execution may be issued if the action be one in which the defendant might have been arrested as provided in sections 129 and 181. (See § 288.) The action by Collumb & 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. Could Caldwell have been arrested under sections 179 and 181 of the code P 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 de
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 cases the creditor has already obtained his judgment, 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
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 maybe 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. In this view the execution against Caldwell, under which he was arrested and detained, was not authorized by any judgment or order or decree of any court, nor by any provision of law.
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 a common law certiorari, no costs can be allowed. (20 How. 304. 16 id. 43, 6.)
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, or 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
The moral distinction, it seems to me, is palpable. It is exactly the difference between the existence and the absence of criminal intent; a difference that has ever existed in practice ; has ever been recognized in the criminal code; is uniformly followed in the criminal courts in the trials of offenses
The affinity between the moral and municipal law is strikingly approximate and assimilable. The moral being the basis upon which the municipal is built, if a question of doubt arise as to the latter it should always be solved, if it may be, by a resort to the former for its determination. 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 rea.” True, when the question before the court to be tried is in reference to the law regarding the transfer of property; or to the weight and consideration of the law of evidence in respect to it; and 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 conclusions of my brother Rosekkans, that we are bound from the act itself 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 sxich case, be inferred, because it is established by the law of evidence to be the necessary legal and natural conclusion and consequence of the act, or of the omission, without otherwise proving the moral intent of the party, than by this legal presumption ; and this rule of evidence is made so conclusive of the existence of a legal fraud, so far as it affects the contract, as to exclude all explanation of innocence of intent.
In the construction to be given to a statute which author
It appears to me, therefore, that in giving construction to this statute for the purpose of imprisoning, or of justifying the imprisonment of a party as a punishment for an offense— a construction upon which depends the restraint of individual, natural liberty—the more humane interpretation should prevail. Liberty and freedom are man’s natural conditions; presumptions should be in favor of this construction. This is the proper, and should be the universal rule, in the admin
I concur, therefore, in the views of my brother Bockes, in affirming the action of the officer upon the habeas corpus.
The relator was arrested and held in custody by the sheriff of the city and county of ¡New York, upon an execution against his body, issued upon a judgment of this court. The judgment was rendered in an action brought by Collumb & Iselin, to set aside certain conveyances and mortgages of real estate and assignments for the benefit of creditors, and a chattel mortgage, alleged to be fraudulent as against the creditors of the relator and an obstruction to the collection of judgments obtained by said Collumb & Iselin against the relator, and the executions issued thereon. The relator presented a petition to Mr. Justice Sutherland, for a habeas corpus, to inquire into the cause of his detention, and upon its return the sheriff set forth the execution against the body of the relator, which was regular in form, as the process by virtue of which he arrested and detained the relator. The relator produced the judgment upon which the execution was issued, and insisted that the process was issued in a case not allowed by law, and that the process was not authorized by the judgment. This was the only evidence produced before the justice, and upon it the relator was discharged from arrest. A certiorari was issued to bring up the proceedings. The complaint in the judgment roll set out the judgments against the relator, the issuing of executions thereon, the mating of the conveyances, mortgages and assignments before mentioned, and alleged that they were fraudulent in law and in fact and upon their face, and that they were made to delay, hinder and defraud the creditors of the relator. The answer admitted the making of the conveyances, mortgages and assignments, but denied that they were fraudulent in law or in fact or upon their face, or that they were made with the intent to defraud creditors. The action
The report of the referee, included in the record, contained a finding of fact that the real estate mortgage was not fraudulent, and a conclusion of law that it was legal and valid. It also contained a finding of fact that the assignment was made in trust to pay debts as therein and in the schedules thereto annexed mentioned, and a conclusion of law upon that finding of fact, that the assignment was fraudulent and void as against the judgments of the plaintiffs mentioned in the complaint. The judgment upon the report adjudged that said assignment was fraudulent and void against the plaintiffs’ judgments set out in the complaint. Upon this evidence, alone, the learned justice who issued the writ of habeas corpus discharged the relator from the custody of the sheriff by virtue of the execution, and necessarily held that the action in which the execution was issued was not one in which the defendant might have been arrested as provided in sections 179 and 181 of the code of procedure. (Code, § 288.) He must have held that the judgment in that action did not adjudge that the defendant therein hoA disposed of his property with intent to defraud his creditors. The record showed that there was no ground for the arrest of the defendant, except for the reason stated in the 5th subdivision of section 179 of the code, which authorizes an arrest “ when the defendant has removed or disposed of his property or is about to do so, with intent to defraud his creditors.” The sole question, then, before us is, does the judgment record referred to show that the defendant had disposed of his property with intent to defraud his creditors. In the case of Dunham v. Waterman, (17 N. Y. Rep. 20, 21,) the court of appeals approve of the reasoning of Mr. Justice Nelson in Gunning - ham v. Freeborn, (11 Wend. 251,) and his conclusion that fraud in law is abolished by section 4 of the statute, in relation to fraudulent conveyances, (2 R. S.137,) which provides that in all cases arising under that act the question of fraud
The assignment being pronounced by the judgment of the court to -be fraudulent as against a judgment creditor, or, in other words, to have been made with the intent to defraud the creditors of the assignor, the execution was authorized by the judgment, and the action was one in which, by sub, 5 of section 179 of the code, an execution against the person of the defendant was proper.
There is nothing in the case of Birchell v. Strauss, (28 Barb. 293,) inconsistent with this conclusion. An order of
In Seymour v. Wilson, (4 Kern. 569,) Denio, J. said: “ Fraudulent conveyances are such as are made with the intent to hinder, delay and defraud creditors, or other persons, of their lawful suits. It is declared that the question of fraudulent intent shall be a question of fact and not of law, and that no conveyance shall be adjudged fraudulent as to creditors solely on the ground that it was not founded on a valuable consideration; and, moreover, the parties to such conveyances are declared to be guilty of a criminal offense. There are cases which present circumstances in themselves conclusive evidence of a fraudulent intent; and there no proof of innocent motives, however strong, will overcome the legal presumption: thus, where an insolvent debtor conveys his estate to a trustee, with a reservation in his own favor, or with some provision which the courts have determined to furnish conclusive evidence of fraud. In such cases the oath of the assignor that his motives were pure would be idle, and could not affect the determination one way or the other. But when the facts do not necessarily prove fraud, but only tend to that conclusion, the evidence of the party who made
Upon inspecting the record presented to the learned justice on the return of the habeas corpus, he could not discover from it that the assignment of the relator was adjudged fraudulent upon the proof of facts which were not conclusive evidence of fraud, hut only tended to that conclusion.
But the record itself furnished conclusive evidence of the relator’s intent to defraud his creditors in making his assignment. The issue was made by the pleadings, and was passed upon, and the judge had no power to look beyond the judgment, or to inquire upon what evidence it was founded. In Van Pelt v. McGraw, (4 Comst. 114,) Pratt, J. says : “ A man must be deemed to design the necessary consequences of his acts. If, therefore, he does a wrongful act, knowing that his neighbor will be thereby injured, he is liable. It is upon this principle that persons are often chargeable with the intent to defraud creditors, or to. commit any other fraud. The immediate motive is oftentimes self interest, but if the necessary consequence is fraud upon his neighbor, the actor is legally chargeable with a design to effect that result.”
In view of these authorities and principles, I do not see how the discharge of the relator upon habeas corpus can be sustained. The cases of Spies v. Joel, (1 Duer, 669,) and Birchell v. Strauss, (28 Barb. 293,) do not warrant the discharge, but on the contrary show that it was improper. The action in which the execution was issued was not instituted for the recovery of money due upon a judgment, but to set aside fraudulent conveyances which were an obstruction in the way of the enforcement of process upon the judgment Had it been an action in the nature of a creditor’s bill, no execution could be issued against the body according' to the first section of the act of 1831. (4 Paige, 397.) Section 179 of the code does not specify the nature of the actions in which the defendant may he arrested “ where he has removed or disposed of his property, or is about to do so, with intent
I think the relator should be remanded to the custody of the sheriff.
Proceedings had before Justice Sutherland, upon the habeas corpus, and the order made by him, directing the relator to be discharged from arrest, affirmed.
Rosekrans, Potter and Bockes, Justices.]