68 Vt. 607 | Vt. | 1896
The action is book account. The writ issued as an attachment. The court rendered judgment for the plaintiff to recover three hundred eighty-five dollars and forty-one cents; and adjudged, that, as to two hundred ninety-six dollars and thirty-five cents of this sum, the cause of action arose from the wilful and malicious act or neglect of the defendant; and ordered that execution on the judgment be certified accordingly. The defendant excepted to the judgment of the court, granting a certified execution.
V. S., s. 1726, provides that no person who is a resident of the United States shall be arrested or imprisoned on mesne process issuing on a contract, express or implied, nor on an execution issued on a judgment recovered in an action founded on such contract, except as hereinafter provided. V. S., s. 1734, provides, that, if the plaintiff praying out a writ files with the authority issuing the same an affidavit stating that the defendant is the receiver of money of the
It appears from the auditor’s report, that the plaintiff delivered fertilizer to the defendant, pursuant to a written contract, by which the fertilizer and proceeds from sales of the same were to remain the property of the plaintiff, the defendant guaranteeing all sales. The judgment was for goods sold by the defendant under this contract, for which he had not received payment, and for money collected and appropriated to his own use. The court granted a certified execution for so much of the judgment as was for money collected and not paid over as the contract provides. If there is any authority for rendering a judgment in an action founded on contract, enforceable in part against the debtor’s property, and in part against his body, it must be found in the statutes above referred to. We think -such authority is
A part of the judgment was not for fiduciary debt, but was for a liability incurred when the defendant contracted to guarantee all sales. A judgment founded in part upon the defendant’s contract of guaranty, could not be enforced against his body, nor could an execution on such a judgment lawfully issue against the body. V. S., s. 1726, expressly prohibits the arrest, and imprisonment of a debtor on an execution issued upon a judgment founded upon a contract, express or implied, except as is thereafter provided. The statute nowhere provides for the arrest and imprisonment of a debtor upon an execution issued on such a judgment as was recovered in the court below. V. S., s. 1734,. provides for the issuing of a writ against the body of the defendant after the filing of an affidavit, when he has received money of the plaintiff in a fiduciary capacity, which he has not paid over on demand; and, when judgment is rendered for such money, the court may adjudge that the defendant is a receiver of money in a fiduciary capacity and issue execution against the body of the debtor. But the court has no authority to thus adjudge and award a body execution, unless the entire judgment is for money thus received and held. If the judgment is founded in part upon a contract for a breach of which the debtor is not subject to arrest and imprisonment, the court cannot adjudge that the cause of action upon which the judgment is founded is for money received and held in a fiduciary capacity, and a judgment that a part of the cause of action is such is of no avail. There can «be but one judgment in such a case; and the judgment must extend to all causes of action for which judgment is rendered, and affect all the causes of action alike. The remedy after judgment, for each cause of action on which the judgment was founded, was the same; and the court could not award a distinct remedy for the respective
The plaintiff was not entitled to a certified execution as to a part of its judgment under V. S., s. 1752. As we have seen, this section provides only for a body execution in actions for the recovery of money or property held in trust, or in a fiduciary capacity; and, in its application to this case, it does not admit óf a construction different from that given to s. 1734- When the plaintiff blended its fiduciary debt and the defendant’s liability under his contract of guarantee in one judgment, it lost its right to have execution against the body of the defendant; and a certificate on a property execution would be irregular and of no avail. A debtor cannot be imprisoned on an execution which does not run against his body, although it has endorsed thereon a certificate as to a part of the judgment.
In Witt v. Marsh ct al., 14 Vt. 303, the 'judgment was founded in part upon a cause of action accruing before January 1, 1839, when a creditor was entitled to an execution against the body of a debtor, and in part upon a cause of action accruing after that date, when a creditor was not entitled to an execution against the body of the debtor; and it was held that the plaintiff could have only such an execution as the law gave for the collection of the demand that accrued after the act of 1839.
We think the error in granting a certified execution cannot be cured by the plaintiff’s remitting a sum equal to the sum that entered into the judgment by reason of the defendant’s contract of guaranty. The plaintiff is not entitled
The judgment granting a certified execution is reversed, •and the certificate vacated. In other res-fiects, the judgment is affirmed.
