Taylor v. Fuller

3 Wend. 403 | N.Y. Sup. Ct. | 1829

By the Court,

Savage, Ch. J.

The fourteenth section of the fifty dollar act, (Statutes, vol. 6, p. 286, c.) provides in the first place, that where judgment shall be rendered against either party, execution shall thereupon issue; it then prescribes, 1. the form of the execution, and 2. the time of issuing it.

I. As to the form, it shall be directed to a constable, commanding him to levy the amount of the goods and chattels of the person against whom it has issued, and to bring the money before the justice to render to the party in whose favor it was granted; and if sufficient goods ánd chattels shall not be found, such execution may be renewed, or further execution may be had, or an action of debt may be brought, and shall further command the constable to take the body, &c. It is contended that no execution can legally isr sue, in the first instance, against the body. This part of the section is not expressed with that clearness and precision which is desirable; but the construction which has universally been given to it is, that the execution shall direct the officer to levy on property, and if none can be found, then it shall further command the officer to take the body. If the legislature had intended that the execution against the body should have been a distinct process, they would not have used the words further command; this implies a previous command. What is that previous command ? Clearly the command to take the property. The obscurity arises from the provision for further execution, or renewal or the action of debt, being introduced in this section between the first and second parts of the contents of the execution.

That this is a correct conclusion, will be manifest from a brief review of the laws regulatings proceedings before justices. By the tenth section of the ten pound act of 1787, (2 Jones & Varick’s Revision, 159,) the execution commands the constable to levy on the goods and chattels, &c. “ and for want of sufficient goods and chattels whereon to levy, to take the body of the person against whom such execution shall be granted,” &c. Two years afterwards the law was altered) and it was enacted, (2 J. & V. 417,) that no person having a family, not being a freeholder, should be imprisoned by virtue of a justice’s execution, and in such case, the execution should be directed against the goods and chattels alone; and if no goods or chattels should be found, or not sufficient, provision was made for a renewal of the execution, or further execution, or an action of debt; but no execution against the body of such defendant was given.

In the revision by Kent & Radcliff, 1 vol 497, the revisors have incorporated the act of 1789, last referred to, into the 14th section, and immediately after directing that the execution shall be against the goods and chattels, the remedy by renewal, or further execution, or by action of bebt is given, and then the further direction follows, that if the party be a freeholder, or have no family, or the judgment be for a violation of the act regulating inns and taverns, “ then every execution to be issued as aforesaid may further command, that if sufficient goods and chattels cannot be found to satisfy the debt or damages and costs as aforesaid, that the officer take the body* of the person against whom such execution shall be granted,” &c. It is not necessary to pursue the annual amendments or rather alterations which were made to this statute. In the next revision by YanNess & Woodworth, in 1813, (1 R. L. 393,) we find nearly the same phraseology as in the act of 1824, under, which the execution in question was issued. It will be seen that the legislature always contemplated an execution against the goods and person in the same process were the party was liable to imprisonment; that when imprisonment was abolished in certain cases, the remec¡y ¡¡y renewal, further execution and action of debt, were intended as a substitute ; when imprisonment was restored, the other remedies were retained, but without proper attention to perspicuity in the arrangement of the different members of the section. It may be further observed, that the constable is directed, for want of goods and chattels, &c. “ according to the tenor of the said execution,” to take the body, &c. It is clear, therefore, that the execution in this case was conformable to the statute.

2. The second point taken by the plaintiff’s counsel may be conceded to be correct, that wherever an oath is necessary to enable the party covering to demand an execution within 30 or 90 days, as the case may be, such oath should be made forthwith upon the rendering of such judgment; that is, while the parties are still before the justice, that the party liable to execution may give the security mentioned in the act. But that does not affect this case ; the plaintiff here was neither a freeholder, nor had he a family; no oath was necessary» therefore, at any time to justify the issuing an execution. The other points raised upon the bill of exceptions being abandoned upon the argument, require no discussion.

Motion to set aside nonsuit denied.