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to afford relief to the owner of the property under circumstances of this description, although, in consequence of such a mistake on the part of the sheriff, he may have omitted to comply with one of the formal requirements of the redemption act.
On reference to the provisions of the Revised Statutes above referred to, it will be observed that, in the event of execution being issued for a debt secured by mortgage, the particular premises charged therewith cannot be seized, and a special direction must be endorsed upon the execution accordingly. V. S. 32 of art. II. above cited. The exemptions of personal property from seizure, as provided for by sections 22 and 23, will also not escape attention, and these exemptions are further extended by C. 157 of the Laws of 1842, and likewise to the homestead of a householder having a family, by C. 260 of the Laws of 1850. See this subject further considered, under the head of provisional remedies, in relation to replevin, or, as now styled, claim and delivery of personal property. See also, on the same question, Cole & Stevens, 9 Barb. S. C. R. 676. See likewise the different works on the former practice, to which, in strictness, the subject belongs.
The form of an execution under subdivision 2 of sec. 289, appears also in the Appendix. In this case it is still more essential that precise information should be given to the sheriff as to the exact property seizable under it, as, otherwise, mistakes of a serious nature may be liable to be made.
The conditions in relation to an execution against the person as issuable under subdivision 3, are prescribed by sec. 288 in the following terms:
§ 288. If the action be one in which the defendant might have been arrested, as provided in section 179 and section 181, an execution against the person of the judgment debtor may be issued to any county within the jurisdiction of the court, after the return of an execution against his property, unsatisfied in whole or in part.
See previous observations in relation to execution on a judgment entered up against joint debtors, one or more of whom has not been served. In this case, also, a special endorsement must be made on the execution, before placing it in the sheriff's hands, which may be thus, following the wording of the statute : "The within execution is not to be served upon the person of the de
fendant A B, who was not served with the process by which this action was commenced.”
The provisions of sec. 179 and sec. 181 here referred to, and the question of arrest in general, will be fully considered here. after, under that particular head. It will be observed that an execution against the person cannot be issued, under the section above cited, until after the return of one against the debtor's property, unsatisfied in whole or in part; and also that such process, when issued, bears no relation to the peculiar districts in which the judgment may or may not have been docketed, but is issuable in any county within the jurisdiction of the court. In this point of view, the Supreme Court is clearly the more eligible tribunal, in cases where an arrest upon execution is likely to be the ultimate result, on account of the limited scope of the jurisdiction of the other tribunals, particularly those of a local nature, however extended their powers in other respects.
The subject of personal arrest on execution, under the Code, has given rise to considerable discussion :—1st. As to whether, to warrant such arrest, a judge's order, under the provisions of sec. 179 and sec. 181, is or is not a necessary preliminary. 2d. Whether, on the contrary, the process for such purpose may or may not be issued as of course, on the return of an execution against the property unsatisfied. And 3d. Whether it is necessary, for that purpose, that the facts warranting the issue of a process of this description, should appear upon the pleadings and judgment roll.
In actions for damages not arising out of contract, or in respect of the misapplication of monies under trust, or in other cases coming within the purview of sec. 178, (as to which, see subsequent chapter, under the head of arrest,) and in which the very groundwork of the case itself brings it within the provisions of that section, and the facts establishing that conclusion form an actual and necessary part of the cause of action, and musi, as such, appear upon the record; it is clear that execution against the person can issue, as of course, on the failure of process against the property, and this, without any previous order being obtained. Cooney v. Van Rensselaer, i C. R. 38, Delamater v. Russell, 4 How. 234, 2 C. R. 147, and Burkle v. Ells, 4 How. 288, 2 C. R. 148, are express authority to this
effect; and the same view is fully and unequivocally confirmed in the more recent cases of Corwin v. Freeland, 6 How. 241, and Masten v. Scovill, 6 How. 315.
In cases, however, arising out of contract, and others where the facts tending to show the commission of a fraud do not actually form part of the original cause of action, but are, on the contrary, extraneous to that cause, the question is one of greater difficulty, and has given rise to considerable doubt.
The first case on this branch of the subject is Secor v. Roome, 2 C. R. 1, which holds distinctly that, in order to warrant an arrest under the provisions of sec. 178, it is not necessary that allegations of fraud should be made on the complaint; and though not reported, it would seem from a dictum at I C. R. (N. S.) 58, that this decision has been confirmed at general term. Barber v. Hubbard, 3 C. R. 156, does not controvert this doctrine, though it is there laid down that averments of the above nature, to the intent that an issue may be framed thereon, with a view to the defendant's liability to imprisonment appearing upon the record, are not improper.
In Gridley v. McCumber, 5 How. 414, 3 C. R. 211, it was considered, although not positively decided, that, in order to an arrest on execution, under any circumstances, the facts warranting such arrest ought to appear upon the pleadings; and, in Barker v. Russell, 1 C. R. (N. S.) 5, it was held to be positively necessary that this should be done in all cases, and an arrest was there set aside, on the ground of the absence of averments of this nature. This decision was, however, reversed by the general term, 1 C. R. (N. S.) 57, on the ground that the allegations in that case did not constitute a part of the cause of action ; and this doctrine is fully maintained in Cheney v. Garbutt, 5 How. 467, 1 C. R. (N. S.) 166, and Lee v. Elias, 3 Sandf. S. C. R. 736, 1 C. R. (N. S.) 116, in which latter case, allegations to a similar effect, which had been inserted in a complaint, were stricken out as irrelevant. See, also, Masten v. Scovill, 6 How. 315.
The doctrine laid down in Gridley v. McCumber, and in the decision at special term, in Barker v. Russell, seems therefore overruled. The question then arises as to whether, in cases arising out of contract, where the liability to arrest arises out of circumstances extraneous to the original cause of action, a judge's order is or is not necessary to be previously obtained,
in order to warrant an execution against the person ; or whether, on the contrary, such execution is issuable as of course, on the return of one against the property unsatisfied.
In Squire v. Flynn, 2 C. R. 117, though the force of the expression in sec. 288 is admitted, it was nevertheless decided that in order to warrant execution against the person, a judge's order must have been obtained under the provisions of sections 179 and, 181; (see also Cheney v. Garbutt, 5 How. 467; 1 C. R. (N. S.) 166,) and the defendant, who had been arrested under one issued, as of course without such an order, was discharged accordingly. This doctrine is, however, expressly disapproved in Masten v. Scovill, 6 How. 315, and seems unsustainable, at least to the extent to which it was carried in the former decision. The provisions of sec. 183, which provides that an order of this description can only be made before judgment, seem to have been denied their due weight in coming to that conclusion. See this point insisted on in Masten v. Scovill.
The doctrine laid down, too, in Gridley v. McCumber, that, by an arrest before judgment, the vitality of the order for that purpose is exhausted, on bail being given ; and that such order cannot afterwards, under any circumstances, be made the ground of a “capias ad satisfaciendum,” is, moreover, in direct conflict with the conclusion in question. The difficulty seems, however, to be solved by sec. 3 of the act of 26th April, 1831, expressly saved by sec. 178, and under which, in cases arising out of contract, or any others in respect of which a defendant cannot be otherwise arrested, a plaintiff, who has commenced a suit or obtained a judgment or decree against a defendant, may apply for a warrant for his arrest, on evidence of fraud, in the manner by that measure prescribed; the mode of application for that purpose, and the evidence on which it is to be grounded, being substantially the same as those prescribed by the Code, in cases of arrest before judgment. This view is confirmed by Gregory v. Weiner, 1 C. R. (N. S.) 210, which holds that, notwithstanding the provisions of the Code, a warrant can be issued under the foregoing act, in all the cases thereby prescribed.
In the recent case of Coruin v. Freeland, 6 How. 241, the subject is very fully examined, and the doctrine of Gridley v. McCumber, viz., that an order of arrest, under sections 179 and 181, forms no justification, or evidence of justification, for an arrest on execution, is confirmed. The principle that, where
the cause of arrest is alleged on the pleadings, and contained as such in the record, the form of execution will be controlled by the latter, and one against the person may be issued as heretofore, is distinctly laid down. Where, however, the cause of arrest is collateral, an order of arrest must then be obtained
the final judgment, and must be attached to that judgment and made part of it, under the provisions of subdivision 2, of sec. 281, until which, the execution will not be warranted by the record. A subsequent filing of an order of this description nunc pro tunc, after the defendant had been arrested and discharged, could not, it was there held, cure the evil or render the execution valid. It is also laid down that a plaintiff may omit to arrest a defendant before judgment, but may then arrest him on final process, provided it be a case in which he might lawfully have arrested him before judgment, on a judges order.
In Masten v. Scovill, 6 How. 315, the same view is taken as to the immateriality of a provisional arrest having been made before judgment, as regards the question of the subsequent issuing of execution against the person ; and such an execution, issued as of course, was sustained in that case, without any order whatever having been made ; fraud having been alleged upon the pleadings, and proved upon the trial. The decision was based upon the broad principle, that, in this, as in every other case, the question was, whether, upon the principles prescribed in the 179 section of the Code, the defendant might have been arrested ; and it was held, that if the facts, as proved, establish a case which would have sustained an order of arrest before judgment, they will also sustain an execution against the person after judgment.
The conclusion to be drawn from the foregoing cases would seem to be this, viz., that, where the cause of arrest appears upon the record, as forming an essential part of the cause of action, execution against the person may be issued as of course, without any order being applied for ; but that where, on the contrary, the cause of arrest is of a collateral nature, an order, authorizing an arrest upon execution, must be applied for, either at or after the signing of judgment, and such order must be attached to, so as to form part of the judgment record, before process of this nature is issued.
An execution against the person is amendable in respect of