
    Hull B. Witt v. Daniel Marsh and John Strong, and Stearns, Warren & Southgate v. Daniel Marsh and Homer Webster.
    When a judgment is rendered in an action of book account, part of the account having accrued before the first of January, 1839, and a part afterwards, the creditor cannot have an execution npon such judgment against the body of the debtor.
    If an execution is issued in such case against the body, and the debtor is committed to prison thereon and gives a jail bond, such bond is void, and the defendants, in defence of a suit on the bond, may give in evidence the illegality of such execution.
    These cases were actions of debt on jail bonds. Each case presented the same question for the determination of this court and both were argued together.
    The first named action was upon a bond, dated September 12,1840, given by Daniel Marsh, as principal,and John Strong as surety, for the admission of said Marsh to the liberties of the jail yard in Windsor county, who was then imprisoned by virtue of an execution issued on a judgment rendered by Walter Palmer, a justice of the peace, on the 31st day of July, 1840, in favor of the plaintiff, Witt, for $77.97 damages and $3.20, costs.
    The defendants pleaded in bar of the action, in substance, that the said Marsh, at the time of the rendition of said judgment and of issuing and levying said execution, was and ever since has been, a resident citizen of this state; that said judgment was recovered in an action founded on contract, to wit, book account; that between twenty and thirty dollars of the plaintiff’s account accrued after the first day of January, 1839, and that said judgment was rendered for and included the account accruing after the first day of January, 1839, and also the account accruing previously thereto; that there were no credits on the plaintiff’s books; that the execution which issued on said judgment, and by virtue of which the said Marsh was imprisoned, was a capias against the body of said Marsh, contrary to the statute in such case made and provided, &c.
    To this plea the plaintiff demurred generally!
    The other action was upon, a bond dated July 17, 1840, given by said Marsh, as principal, and Homer Webster as surety, for the admission of said Marsh to the liberties of the jail yard, who was then imprisoned by virtue of an execution issued on a judgment rendered by Norman Williams, a justice of the peace, on the 11th day of May, 1840, by confession, in favor of Stearns, Warren & Southgate, against said Marsh for $125.75 damages and 25 cents costs.
    The defendants’ plea to this action was the same, in substance, as the plea to the preceding action, above set forth, excepting that the accounts between the parties were thus stated in the plea ; — ‘ the amount of the charges on the ‘plaintiffs’ book was $173.61; that only ten or fifteen ‘ dollars of said account accrued against said Marsh before ‘ the first day of January, 1839, and the residue thereof ac- ‘ crued after the first of January, 1839, and that there were ‘ credits to said Marsh, on the plaintiff’s books, amounting to ‘ $47.00, all of which were made after the first day of January, 1839.’
    To this plea there was a general demurrer and joinder.
    The county court decided that said pleas were sufficient, and, in each action, rendered judgment for the defendants, and the plaintiffs excepted.
    After argument by O. P. Chandler, for plaintiffs, and C. Marsh, for defendants,
   The opinion of the court was delivered by

Williams, Ch. J.

Both of the above cases depend on the same question, and have been submitted together. They áre actions of debt on jail bonds. The plea in the one case, discloses that the judgment, on which the execution issued, whereon Marsh was committed, was rendered in an action on book, and that the principal part of the account accrued before the first of January, A. D. 1889. In the other, that the principal part of the account accrued after that time. The question is, whether, under the existing law, the plaintiffs were entitled to the executions against the body of Marsh, the debtor, and whether the commitments thereon were so far legal that the defendants are liable on their jail bonds. The question is now presented to the court, for the first time, and is somewhat embarrassing, arising from the nature of the action on book. In the action on book, all the accounts between the parties, although running ever so long, up to the time of auditing the account, must be sued for in one action, and there can be but one recovery and one judgment.

On all judgments rendered on contracts accruing before the first day of January, A. D. 1839, the creditor was entitled to an execution against the body of the debtor, with some exceptions which it is not necessary to mention. On judgments rendered on contracts, express or implied, made or entered into after that period, no writ or execution could issue against the body of the debtor, if he was a resident citizen of this state. In the statute which took away the remedy against the body of the debtor, for contracts made or entered into after the first day of January, 1839, no provision was made for a case where the judgment was rendered on different contracts, some of which were before, and some after that date. But we think, that if a party voluntarily embraces in one declaration several counts or different contracts, on some of which he would have been entitled to a capias and on the others would not have been so entitled, he cannot, on such judgment, have an entire execution against the body of his debtor. The same principle would apply to a recovery in the action on book, where part of the demand was since the passing of the statute abolishing imprisonment. Indeed, unless some legislative provision is made, we cannot issue, on one judgment, an execution for part of the debt against the body, and for the other part against the property alone.

Where the creditor continues an account after the first of January, which had commenced before, and brings an action on book to recover therefor, it may be considered as a voluntary blending and uniting in one judgment claims on which he might have been entitled to different remedies. Whether, by resorting to any other form of action, a judgment could have been rendered for the amount due from the defendant, for which the plaintiff could have had execution against his body, and another for the amount due when he ceased to have that remedy, is not for us to inquire.

It has been contended, in this case, on the one side, that the whole contract may be considered as one made at the commencement of the account between the parties, to pay any balance which might thereafter be found due; and, on the other side, as a contract after the account had closed, to pay the balance. Neither of these views is satisfactory as showing that the plaintiff was entitled to one remedy alone for the whole of the demands due from the defendant. Up to the first of January, 1839, the creditor had a remedy to recover what was due to him at that time, by attachment or execution against the body. After that time, he had no such remedy. By uniting them together and obtaining one entire judgment, he cannot have such remedy for that part of the demand accruing after the first of January, 1839, which he had for the amount accruing before, and can, therefore, take only such an execution as the law now gives, for the collection of demands lately contracted.

It is made a question whether the defendants can avail themselves of this as a defence to the jail bond.

It is to be remembered, however, that we have repeatedly determined, that,in such an action, the defendant may contest the legality of the imprisonment. He can show that no such judgment was rendered, or no such execution issued as was described in the jail bond, and, however the execution and. judgment may protect the party, in an action for false imprisonment, yet, it would be wholly superfluous to require a defendant first to set aside the execution, before he could defend against the suit on the jail bond, by showing the irregularity of the commitment. In the present cases, the executions were illegal, as having been issued against the express provisions of the statute. The judgments of the county court are therefore reversed.  