
    James S. Carpentier, Plaintiff, v. James C. Willet, Sheriff of the City and County of New York, Defendant.
    1. Under the provisions of the statute entitled “ An act to reduce the several acts relating to the District Courts in the city of Hew York into one act,” passed April 13, 1857, an execution against the body of the defendant cannot be lawfully issued, unless it is stated in the judgment that the case is one in which the defendant is subject to arrest and imprisonment thereon.
    2. Where the Justice rendered judgment for the plaintiff for a sum specified as damages and costs, without stating in the judgment or in the docket thereof that the case was one in which the defendant was subject to arrest, &c., and an execution was nevertheless issued against the person of the defendant, and he was arrested, delivered to the custody of the Sheriff, and he accepted such custody, making due return that “ the defendant is in custody,” and afterwards took a bond tor the jail liberties from the defendant and sureties, such arrest and detention are nevertheless unlawful; the Sheriff is not, as against the plaintiff, bound to detain the defendant; and he is not liable to the plaintiff for an escape, although such defendant departs from, the jail limits.
    3. The circumstance that, on the day following the rendering and entry of the judgment, the Justice, on the presentation of an affidavit by the plaintiff, showing cause of arrest, &c., made an order that an execution issue against the body, does not make the execution legal. Such an order is no part of the judgment; and, after rendering judgment, the Justice was, in respect to the question whether the defendant was subject to be arrested in that action, fundus officio, and had no power to make the order.
    4. Under the statute referred to, the decision of the question, whether the defendant was liable to arrest and imprisonment, when such arrest, &e., was claimed by the plaintiff, was part of the judicial duty of the Justice, and should have been included in the judgment as much as his decision of the question of the defendant’s liability for the debt or damages sued for.
    (Before Bosworth, Ch. J., and Hoffman and Moncrief, J. J.)
    Heard, December 16th, 1859;
    decided, January 7th, 1860.
    Motioh for judgment upon a verdict taken by consent, subject to the opinion of the Court at General Term, with leave to enter judgment of nonsuit or dismissal of complaint, if so advised.
    The cause was tried before Chief Justice Boswoeth and a jury, on the 23d day of April, 1858. The jury found a verdict for the plaintiff, and assessed his damages at $275.33, subject to the opinion of the Court at General Term, and to be heard there, in the first instance, on the questions of law arising in the case, with liberty to the Court at General Term to dismiss the complaint, if so advised, with the same effect as if dismissed at Trial Term, and exceptions taken by the plaintiff; judgment in the meantime to be suspended: the counsel of both parties consenting ah the trial that the verdict be so taken.
    The action was brought against the defendant, as Sheriff of the city and county of New York, for the escape of one Samuel H. Doughty.
    On the 12th of November, 1857, the present plaintiff recovered a judgment against the said Doughty, in the Third District Court of the city of New York, before William B. Meech, Esquire, Justice of said Court, for the sum of $250 damages and $17.50 costs. On the 15th of November, 1857, an execution was issued, purporting to be upon such judgment, commanding any constable, in the usual form, to levy the amount of the goods and chattels of the defendant; and if sufficient goods and chattels could not be found, then commanding such constable to arrest the defendant, and commit him to the jail of the city .and county of New York, the keeper whereof was directed him safely to keep, until he should pay.such judgment, or be discharged according to law.
    On the 18th of November, 1857, one of the constables of the city arrested the said Doughty, by virtue of the execution, and committed him to the jail of the county, and to the custody of the" present defendant, as Sheriff of the city and county, and keeper of the jail thereof.
    On the same 18th day of November, 1857, Doughty, with two persons as his sureties, gave what is termed a bond for the limits. It was executed to the Sheriff, the present defendant,, and recited that the said Doughty was a prisoner in his custody, as Sheriff of the county of New York, by virtue of a capias ad satisfaciendum. The following indorsement was on the execution: “Sheriff’s return—defendant in custody.— J. C. Willet, Sheriff.”
    On the 21st of November, 1857, Doughty was found off the limits, and the summons in the present action was duly served upon the defendant.
    
      On the trial, the record of the proceedings in the case m the Third District Court was given in evidence, and from these proceedings it appears:
    That the present plaintiff, as assignee of one France, sued Doughty to recover the surplus of the avails of certain notes deposited with Doughty, paid to him and remaining in his hands after satisfying a demand of Doughty, for securing which the notes had been delivered to him. It was alleged .that Doughty had received the sum of $574.19, exceeding the balance due him by about $300. The complaint demanded judgment for $250. It is needless to state the defense.
    The cause was tried on the 12th of November, 1857. The closing entry of the proceedings on the trial, as returned to the Court of Common Pleas upon an appeal, is as follows :
    “ The parties here rested; and on the same day, I rendered judgment for the plaintiff for $250 damages, besides costs. William B. Meech, Justice.1'
    The plaintiff produced in evidence a certified copy of the docket of the judgment in the District Court, which, so far as it is necessary to transcribe it, is as follows: “ J. S. Carpentier, assignee of Thomas France, against Samuel H. Doughty. Summons issued, 15th of September, 1857; returnable, 18th September. Summons returned served in person, 15th of September, 1857. Plaintiff appeared in person. Complaint on file; defendant appears by Mr. Harrington. Answer on file.”
    Then follows a minute of various adjournments until November 12th: “November 12th-—Cause tried, and the court thereupon rendered judgment for the plaintiff for damages,. $250 00 Costs, $5.50; extra costs, $12,.................... 17 50
    $267 50
    
      Si. nul. ordered to issue by Justice, November 13th, 1857.
    
      Si nul. issued November 13th, 1857.”
    There was also produced in evidence, under objection and exception by the plaintiff, the original entry of judgment by the Justice of the Third District Court, in the suit by the plaintifft against Doughty, indorsed on the summons in that action. It is as follows: “ Judgment for plaintiff, $250, $12 allowed and
    costs, Nov. 12, 1857, 3£, Justice.”
    
      The plaintiff’s counsel then produced in evidence, the following affidavit and indorsement:
    “ Third District Court. James S. Carpentier agt. Samuel S. Doughty, city and county of New York, ss:
    
    James S. Carpentier, the plaintiff in this action, being duly sworn, deposes and says: That this action was brought to recover money collected and received by the defendant to the use of the plaintiff, and belonging to him. That judgment therein has been rendered for the plaintiff, and that, as appears by the pleadings and proofs in this cause, the said defendant received said moneys in a fiduciary capacity,” to wit: as a trustee, and refused to pay over the same on demand thereof by the plaintiff. And deponent further saith, that the said defendant is a non-resident of this State, and that since the commencement of this suit he has made an assignment, as deponent is informed and believes, of all his property and assets. J. S. Carpentier, sworn this 13th of Nov., 1857, before me, Wm. E.- Smith, Jr., clerk in court.
    (Indorsed)
    Execution against the body to issue.
    WM. B. MEECH, Justice.
    
    Nov. 13, 1857.”
    An appeal was taken from the judgment of the District Court, to the Court of Common Pleas. An undertaking executed upon such appeal was read in evidence by the defendant, under an exception by the plaintiff
    It is not deemed necessary to state the proceedings on that appeal, except that the judgment was affirmed; and that neither the affidavit of Carpentier last mentioned, nor the indorsement upon it, nor the entry “ Si. nul., ordered to issue Nov. 13, 1857,” nor the entry I.11 Si nul, issued Nov. 13, 1857,” on the docket, were before the Common Pleas on such appeal.
    
      John Graham, for the plaintiff, argued, among others, the following points:
    I. The Justice who presided at the trial, properly allowed the execution issued out of the District Court, and the return of the defendant as Sheriff, to be read in-evidence, and the objection of the defendant and his exception to the ruling of the court are not well taken.
    1. It is incumbent upon the plaintiff in an action for an escape to prove the execution, by virtue of which the prisoner was committed to the custody of the Sheriff. The Sheriff’s return indorsed, proves the caption.
    2. The defendant was estopped to deny the regularity or validity of the judgment or process, as a defense in this action. Having arrested the party, he was bound to keep him until discharged by due course of law. (Cable v. Cooper, 15 Johns., 152.)
    3. It is no defense to an action for the escape of a defendant in execution, that the execution was irregularly issued. (Scott v. Shaw, 13 Johns., 378; Himnan v. Breese, id., 529; Bissell v. Kip, 5 id., 89; Ontario Bank v. Hallett, 8 Cow., 192; Berry v. Riley, 2 Barb., 307.)
    II. The “limit bond” executed and delivered to the defendant as Sheriff, on admitting the defendant in the execution to. the jail liberties, was relevant and material, and was properly admitted as evidence.
    The return of the Sheriff indorsed upon the execution is without date. It became material to show that the prisoner was in his custody before the commencement of the action, and before the alleged escape. The production of the limit bond was not only competent, but the best proof .of the fact.
    III. The motion for a nonsuit was properly denied.
    1. The pleadings and proofs upon which the judgment of the Third District Court was rendered, were a part of that judgment, and showed it to be one upon which the defendant might be lawfully arrested and imprisoned. (Fullerton v. Fitzgerald, 18 Barb., 441.)
    2. The omission of the Justice “to state in the judgment and enter in the docket ” that the defendant was “ subject to arrest and imprisonment,” does not affect the judgment, nor the rights or remedies of the plaintiff. ( Hall v. Tuttle, 6 Hill, 38.)
    3. The 50th section of the act of April 13, 1857, [1 Laws of 1857, p. 707,] is. merely directory. The entry required to be made is ministerial and. formal, “ and the statute touching the docket and its minutwe merely directory. Its language being imperative does not make it anything more. Almost every directory statute is imperative in its words.” (Per Cowen, J., in Hall v. Tuttle, supra, and 5 Seld., 208.)
    This statute is like the statute 43 Elizabeth, chapter 2, section 5, which enacted that male apprentices should be bound out by the parish till the age of 24, yet a binding till 21 was held to confer a settlement; “ for the statute is only directory, and not compulsory in this respect.” (Dwarris on Statutes, 714; Rex v. Woolstanton, 1 Bot. Set. Cas., 610; Sedg. on Statutes, 360, 381.)
    “When the language of the statute is only in the affirmative,” says Lord Hale, “it is directory;” [2 Hale P. C., 50;] and this expression is quoted with approbation by Lord Tentebden, in Rex v. Leicester, 7 B. & C., 12. (See also Rex v. Loxdale, 1 Burr., 447; Rex v. Birmingham, 8 B. & C., 29; The People v. Allen, 6 Wend. 486; Ex parte Heath, 3 Hill, 42.)
    4. But if the judgment of the Third District Court did not authorize “the arrest of Doughty,” the defendant in this action cannot avail himself of the fact as a defense. (16 N. Y. R., 439; 2 Phillips on Ev., 400; Buller N. P., 66; Ontario Bank v. Hallett, 8 Cow.; 192; Ames v. Webbers, 8 Wend., 545; Gregory v. Levy, 12 Barb., 610.)
    5. If, by reason of the omission of the justice to make the entry mentioned in section 50 of the act in relation to District Courts, the plaintiff was not entitled to an execution against the body of Doughty, the execution is only voidable and this is no defense to the Sheriff. (Ames v. Webbers, supra.)
    
    It is good until set aside, which can only be done on the application of the defendant in the execution. (Per Kent, Ch. J., in Bissell v. Kip, 5 Johns., 89; Bacon v. Cropsey, 3 Seld., 195.)
    It is not necessary that the execution should recite the facts to prove that it was legally issued; (Hutchinson v. Brand, 5 Seld., 208;) nor that the record itself should prove it, if it appear aliunde. (Corwin v. Freeland, 2 Seld., 560.)
    IV. The affidavit and indorsement thereon were properly admitted.
    They supplied, in substance, the entry required by the act, [1 Laws of N. Y., 1857, p. 707, § 50,] and were admissible for that purpose.
    V. Upon the whole case, the plaintiff is entitled to judgment.
    
      
      A. J. Vanderpoel, for the defendant.
    This action cannot be maintained.
    I. The execution issued against the person of Doughty, for whose escape it is sought to make the Sheriff hable, was void. That the process is void, is a defense to the Sheriff. (Cornell v. Barnes, 7 Hill, 35; McDuffie v. Bedoe, 7 Hill, 578; Jones v. Cook, 1 Cow., 309; Earl v. Camp, 16 Wend., 562; Horton v. Hendershot, 1 Hill, 118; Phelps v. Barton, 13 Wend., 68; 9 id., 430.)
    1. The judgment in this case was rendered by the Justice, and entered in the docket on the 12th day of November, 1857.
    On the 13th November, plaintiff made an affidavit, “'That judgment has been rendered for the plaintiff,” &c., and on that affidavit the Justice indorsed “ Execution against the body to issue.” Wm. B. Meech, Justice, November 13, 1857.
    2. The 50th section of the act of April 13th, 1857, to reduce the several acts relating to the District Courts of the city of New York into one act,” says: “When a judgment is rendered in a case where the defendant is subject to arrest and imprisonment thereon, it must he so stated in the judgment and entered in the docket.” The statute is imperative. He must adjudge that it is a case in which the party is subject to arrest.
    3. On the 13th of November, 1857, Justice Meech had no jurisdiction to act He was functus officio. He had no more right to order an execution to issue against the person on the day after he had rendered judgment, than he would have had three months thereafter. (Watson v. Davis, 19 Wend., 371; Sibley v. Howard, 3 Denio, 72.)
    4. But even if he could have amended his judgment, the proceedings of the 13th of November were of no avail, and void. The statute has prescribed that the right to arrest shall be stated in the judgment, thus forming a part thereof, and no other order, or form of order,, will satisfy this requirement. When it is stated in the judgment, it is just as much the subject of review on appeal as any other part of the merits. This is the only way in which the right to arrest, can be reviewed on appeal. In this case the indebtedness might not have been denied, but the sole controversy may have been whether the money had been received in the character of agent. Under the-judgment, in its present form, the Court of Common Pleas on appeal, finding the indebtedness admitted, would not review the question as to whether the moneys were received in a fiduciary capacity, or if it had been stated the Court could have reversed in the part relative to the arrest and affirmed as to the residue.
    5. The district courts are of limited jurisdiction, and can only act in the manner pointed out by statute. They cannot grant new trials, nor amend their judgments — they can do nothing requiring the exercise of discretion—from that time they are mere ministerial officers. (Watson v. Davis, 19 Wend., 371; Atkins v. Kinnan, 20 Wend., 241, 247; 1 Hill, 130.)
    6. The statute being in restraint of personal liberty, is to be strictly construed (1 Black. Com., 88, note; 12 Johns. R., 373; Case of Pierce, 4 Shep. R., 255; 10 Ind., 493.)
    II. The affidavit and indorsement at folio 112, were irrelevant, and should have been excluded.
    The defendant is entitled to judgment.
   By the Court—Hoffman, J.

The main question is, what is the effect of the omission of the Justice to declare, in his judgment, that the defendant was subject to arrest and imprisonment?

The 50th section of the act of April 13, 1857, (vol. I, p. 720,) entitled “An act to reduce the several acts relating to the District Courts in the city of New York into one act,” applies to the case. It directs that, when a judgment is rendered in a case where the defendant is subject to arrest and imprisonment thereon, it must be so stated in the judgment and entered in the docket.”

It deserves notice, in explaining the intent and force of this enactment, that, in the old act of 1813, (2 R. L., p. 376, § 98,) a provision was made by which, in certain cases, an execution could go against the person, after an inquiry into certain facts had subsequent to the judgment. But yet the proviso appears to enable the defendant to guard against this being done ex parte, by claiming an exemption.

Without, however, determining this point, or more fully entering upon the meaning of that provision, it is important to observe that, by the 30th section of the “ act to abolish imprisonment for debt,” &c., of April 26, 1831, it was provided “ that no execution issued upon any judgment rendered by any Justice of - the Peace. upon any demand arising upon contract, express or implied,, or upon any other judgment founded upon contract, whether issued by such Justice or by the Clerk of the county, shall contain a clause authorizing an arrest or imprisonment of the person against whom the same shall issue, unless it shall be proved by the affidavit of the person in whose favor such execution shall issue, or that of some other person, to the satisfaction of such Clerk or Justice, either, 1. That the person against whom the same shall issue has not resided in this State for the space of thirty days preceding,” &c. The other cases are then enumerated in which the execution against the body may be allowed.

These provisions appear to allow of evidence being given to satisfy the Justice after judgment, and ex parte.

The 16th section of the act of April, 1857, first referred to, specifies the cases in which a warrant of attachment may issue to arrest the defendant on commencing the action. They include the case of an agent receiving money in a fiduciary capacity and converting it, and the case of a disposition of one’s property with intent to defraud his creditors, and also when the action is for the recovery of damages, (in a cause of action not arising on contract,) and the defendant is not a resident of the county. The language is similar to some provisions of the Code.

Unless the defendant Doughty received the money for which judgment was obtained in a fiduciary capacity, he was not liable originally to an arrest on anything appearing in the case. And I apprehend that an execution could only be allowed against the person where the defendant could originally have been arrested.

The 25th section of the act provides, that when the defendant has been arrested, an adjournment cannot be had for more than forty-eight hours without his consent; .and an adjournment for a longer time discharges him from such arrest; but the action may proceed notwithstanding, and the defendant shall be subject to arrest on the execution in the same manner as if he had not been discharged. And by the second subdivision of section 52, as to the form of the execution, if it be a case where the defendant may be arrested, it may direct the officer, if sufficient property cannot be found to satisfy the judgment, that he arrest the de fendant, and commit. him to jail, until he pay the judgment, or be discharged according to law.

There is not in the statute any provision similar to those I have referred to in previous acts, for an inquiry into facts subsequently to a judgment, to justify an arrest. There is in the eighty-first section a positive repeal of every law or rule in any case provided for by the act, or inconsistent with its provisions; and no law or rule is to be deemed retained, because it may be consistent with the provisions upon the .same subject in the act, saving rights existing or accrued, or proceedings already taken.

It appears to me, that the enactment in question has assigned to the Justice trying a cause under it, as part of his judicial duty and office, the obligation and necessity of passing upon the question of the defendant’s liability to an arrest, as definitely as upon that of his liability in the action, and to embody his judicial conclusion in his judgment. If the defendant has been originally arrested upon grounds apparently sufficient, he may have upon the trial the opportunity of disproving them, and showing their insufficiency. If he has not been arrested, still more important and more reasonable is it that he should have the opportunity of shaping his defense to this point also upon the trial; of having it determined upon the evidence there given, and the case there made; and of having the right to review a judgment against him on this point, as well as on any other, by his appeal.

We are bound to assume, that the Justice ordered the execution against the person on the ground of the money being received inz a fiduciary, capacity. There was nothing else in the facts stated in the affidavit, which could have warranted it. And yet, that question would be open to serious doubts, and might have been decided differently on the appeal had it been brought up.

The decision of the point of the subjection to arrest was part of the Justice’s judicial labor and duty. When he gave judgment on the 12th of November, he had not made up his mind (as we are justified in assuming) upon this point, and perhaps it had not been suggested that the defendant was liable to an arrest. “ There can be no judgment even by legal implication, neither in substance nor in form, till a judicial conclusion is made by the Justice.” (6 Hill, 41.) Equally clear is it, that there was no judgment stating that the defendant was subject to arrest, made on the 12th of November, and that the order made the next day on an affidavit was not a judicial conclusion on the case tried before the Justice. He had tried the case on the 12th of November. His judicial action on what he had tried was complete. On this particular subject, he had reached no result judicially when he gave judgment.

It seems to me that the letter, the spirit, and the apparent object of the enactment referred to, all declare the statement, in the judgment, to be a judicial act, essential to the right to arrest, and not merely ministerial, and attendant upon a judgment. The cases of Watson v. Davis, (19 Wend., 371,) Young v. Rummell, (5 Hill, 60,) Hall v. Tuttle, (6 id., 38,) and Sibley v. Howard, (3 Denio, 72,) appear to me to warrant this conclusion. What was done on the 13th of November was done when the Justice, as to that cause, was, for all judicial power, functus officio, and his act was void, not merely irregular. The question as to a statute being directory or mandatory does not arise.

2. The next question is, has the Sheriff a right to avail himself of this matter, as a defense to the present action ?

It seems to me, that the cases cited by the defendant’s counsel, and particularly that of Phelps v. Santon, (13 Wend., 68,) settle this question fully in his favor. So in Constant v. Chapman, (2 Queen’s Bench R., 771,) it was expressly decided, that when the marshal of the prison was sued for an escape, the defense was open to him that the party was not legally in custody at the time of the escape. And the case goes far to determine that receiving a prisoner with knowledge of the facts showing the illegality, is not enough'to charge the marshal, though to detain the prisoner against his will would have been unlawful.

The view thus- taken dispenses with the necessity of examining-any of' the defendant’s exceptions to the rulings of the Judge..

There are three exceptions of the plaintiff to be noticed..

The admission of the original entry of the judgment indorsed! on the summons was, in our opinion, proper. That entry is the judgment, and from that the clerk makes in his- docket the entry required by section 59, subdivision 8, page 723.

The court admitted, m evidence, the undertaking, given on the appeal to the Court of Common Pleas, and,, also, proof of the service of such undertaking on the defendant. To which exceptions were taken.

The sufficient reply to this is, that the Court orders the complaint to be dismissed, because the Judge should have done so on the trial; and orders it on the sole ground that the judgment of the Justice does not state that the defendant was liable to arrest and imprisonment; and the case (under the stipulation) is to be altered so as to show that a dismissal was ordered at the trial, and that the plaintiff then excepted.

The complaint must be dismissed, with costs.

Ordered accordingly.  