Phelps vs. Barton, 13 Wend. 68

By the Court, Savage, Ch. J. The only questions are whether Van Dyck could be imprisoned for the costs of the judgment on certiorari ; and if he could not, whether the sheriff, in the action for the escape, can avail himself of such exemption. It was decided in Ray v. Hogeboom, 11 Johns. R. 433, that an officer who had process against a person who was privileged from arrest, might execute it or not; he is not bound to take notice of the privilege, but if he chooses to do so, and neglects to execute it, the fact that the person was privileged from arrest is a good defence in an action against him.

No wrong is done to a plaintiff,- by refusing to arrest a defendant whose body he has no right to arrest. The doctrine of that case, applied here, would be, that though the sheriff would be justified in arresting and imprisoning the defendant Van Dyck, yet he was not bound to do so ; and as the plaintiff Phelps had no right to imprison him, the sheriff has done him no wrong by refusing to detain Van Dyck in prison. The only question therefore is, whether the imprisonment of Van Dyck was lawful.

The language of the statute is, that “Noperson shall be arrested or imprisoned on any civil process issuing out of any court of law, or on any execution issuing out of any court of equity, in any suit or proceeding instituted for the recovery of any money due upon any contract express or implied, or for the recovery of any damages for the non-performance of any contract.” It is unnecessaryto take notice of the exceptions in the following sections, as it is not contended that this case falls within any of them. The original suit brought by Van Dyck against Phelps was assumpsit upon contract.

Let us suppose that the judgment in his favor before the justice had been affirmed by the common pleas, most clearly no execution against the body of Phelps could havebeen executed for the damages recovered. The prohibition of the statute reaches it in terms. No person shall be imprisoned on civil process issuing out of any court of law, in any suit for the recovery of damages for the non-performance of any contract. Could Phelps have been imprisoned for the costs,if not for the damage ? That cannot be pretended ; the costs are a mere incident to debt or damage recovered.

But the language of the statute embraces the whole—no person shall be imprisoned upon any process issued in any suit instituted upon a contract. There is no ambiguity in the expression, and no room for argument or elucidation. This very question has been decided in 9 Wendell, 430. The facts of the case are not given in the report. I give them now. Walker and Skeel sued Richardson in a justice’s court, upon a contract for wheat sold and delivered, and recovered a judgment. Richardson brought a certiorari to the Onondaga common pleas, where thejustice’s judgment was reversed.

The costs were taxed, the record signed and filed, and the defendants imprisoned upon a ca. sa. for those costs. Upon a motion for that purpose, the court set aside the ca. sa. for irregularity, with costs. Richardson made an application to this court for a mandamus to the common pleas of Onondaga, to vacate the rules setting aside the ca. sa. Though it was ex parte, the motion of an alternative was denied, Mr. Justice Sutherland saying, “ This case is clearly embraced within the first

section of the act, Law of 1831, p. 396. The execution was issued in a suit or proceeding instituted for the recovery of money due upon contract.” The only differenee between the two cases is this: In the case from Onondaga the defendants in error were discharged by the court; in the present case the party left the limits without an order of the court—but in both cases the imprisonment was equally unlawful: and as no action lies against the sheriff for refusing to execute illegal process, the present plaintiff had no cause of action against the present defendant.

The justice erred in giving judgment for the plaintiff, and the common pleas were right in reversing it. Their judgment must be affirmed, with double costs. 2 R. 8. 617, § 24. Judgment affirmed.