19 Vt. 43 | Vt. | 1846
The opinion of the court was delivered by
The important question, presented for cur determination, in this case, relates to the regularity of the execution issued against the complainants. If the execution was wrongfully issued against their bodies, they should succeed with their audita querela.
The statute provides, that no person, who is a resident citizen of this State, shall be arrested upon an execution, issued upon a judgment recovered in an action founded upon a contract, express or implied, made or entered into since the first day of January, A. D. 1839. Judgments are frequently classed by legal writers under the head of contracts. Story, in his treatise on contracts, p. 2, makes three .classes, one of which consists of contracts of record, such as judgments, recognizances, and statutes staple. Blackstone, in his commentaries, vol. 3, p. 160, says, it is a part of the original contract, entered into by all mankind, who partake of the benefits of society, that they will submit in all points to the municipal constitutions and local ordinances of that state, of which each individual is a member; and that therefore whatever the laws order any one to pay becomes instantly a debt, which he hath before hand contracted to discharge.
Though the term “contract” is usually employed to designate
The effect of a judgment is a merger of the original cause of action, upon which the suit is founded, whether it be in tort, or contract ; and in either case the judgment constitutes a debt, with the same incidents, in the one case, as in the other. The words of the statute are as broad, as they well can be. The statute provides against the imprisonment of the body upon any execution, issued upon a judgment recovered in an action founded upon a contract, express, or implied.
We think, then, as the judgment was obtained since the first day of January, 1839, upon which the action was founded, wherein the judgment was recovered, upon which the execution, now sought to be set aside, was issued, that it is a case within the purview of the statute, and that the complainants were, not liable to imprisonment.
It has been argued for the defendant; that it does not appear, that the complainants were resident citizens of the state. I apprehend this was not made a ground of objection in the county court. It is to be remarked, that this case comes to this court upon exceptions to the decision of the county court upon a case agreed upon; and, though it is not expressly stated, in the body of the agreement, that Sawyer and Taylor were citizens of this state, yet the original writ and the execution sought to be set aside are made a part of the case,, and in both they are set up as resident citizens of the state. If this; was a false description, it should have been shown to have- been so;. We are not to intend it, in order to reverse a decision of the county court.
It is also said, that it does not appear, but that an affidavit had been filed, under the proviso to the statute, which would have entitled the plaintiff to a capias. It may be answered, that it does not appear that one was filed. If the plaintiff claimed any benefit from the proviso, he must have brought himself within it.
The result is, the judgment of the county court, setting aside the execution, is affirmed.