
    The People ex rel. Lust and Salomon v. Grant, sheriff.
    
    
      (Supreme Court, Chambers, New York County,
    
    
      September 8, 1886.)
    
    Arrest in civil action—Period of imprisonment limited to six months—Code of Civil Procedure, § 111, as amended by chapter 673 of Laws of 1886.
    The purpose and effect of the amendments of the Code contained in chapter 673, of the Laws of 1886, is to limit the period of imprisonment in civil actions to six months, or, at least, six months upon any one process that can he employed m the course of a civil action, except for contempts of court in other respects than the non-payment of alimony and expenses of matrimonial actions.
    Motion to discharge Lust, relator from jail liberties.
    
      Julius T. Frank, for relator.
    
      Townsend, Dyett & Finstein, for David Levy.
    
      Blumensteil & Hirsch, for defendant, Saloman.
    
      Cochran & Clark, for sheriff Grant.
    
      
       See N. Y. C. and H. R. R. R. Co. v. Shepard (ante, 79).
    
   Porter, J.

It appears from the petition for the writ of certiorari, and from the sheriff’s return thereto, that the relator was arrested and put into the common jail .of the county of New York, by virtue of an execution against his person issued upon a judgment in an action in which an order of arrest was granted and which was never vacated or modified. Such arrest was made in the month of February, 1885. Upon the 19th day of that month the relator gave to the late Sheriff Davidson a bond or undertaking, in due form of law, for the liberties of the jail, and upon the election to that office of the respondent, the relator, in the month of January, gave him a bond for the liberties of the jail. So far as appears, therefore, the relator has been a prisoner within the jail liberties for some eighteen months. He now applies by certiorari, served upon the sheriff and the sureties in the bond for the liberties of the jail, to show cause for his imprisonment.

The sheriff makes return to this writ these facts, and claims that he does not restrain the relator or assume to exercise any control over him in anywise, and that he is advised that he has not, since the giving of the bond, and that in the absence of his surrender by the sureties,, any right to the control of the relator, and that before any right accrued to him to take the relator into his custody by such surrender, an act, chapter 672, amending section 111 of the Code, was passed by the legislature, providing that prisoners upon the Hmits should be discharged after remaining there six months.

The sureties, in their return to the writ, allege that the relator is detained by them within the liberties by virtue of said execution and bonds for the liberties conditioned that the relator should remain a true and faithful prisoner, and and should not at any time go without the liberties of the jail until discharged by due course of law. These are the facts of the case respecting the relator Lust.

Other applications are also pending before me for the discharge of Robert Salomon, who was arrested on the 9th day of February, 1886, at the suit of four different plaintiffs, under orders of arrest granted by a judge in four separate and distinct actions, and upon that day as many separate bonds, in due form of law, were given in his behafi for the liberties of the jail in the city and county of New York, where he remained on the 9th day of August, 1886, when this application for his discharge was presented to the court. Neither of said actions has been tried or proceeded to judgment, but are all now at issue.

The sheriff and the plaintiffs in the several actions by their respective counsel, oppose the discharge of the defendant Salomon, upon the ground that the _ defendant Salomon is not entitled to be discharged under the amendments of the Code contained in chapter 672 of the Laws of 1886.

As my examination of these amendments in their application to the case of Lust, necessarily involved an examination of the other amendments as applicable to cases like Salomon’s, who had been imprisoned within the liberties of the jail for six months, and incidentally to another class who have been imprisoned within the jail six months under orders of arrest simply and without bail of any kind, I have thought it would serve economy of time to give my views of these classes of cases in one opinion.

It may be well at the outset to consider the state of the law existing when these amendments to it were made, the evils to be corrected and the objects to be attained by the amendments. Power was given by the existing laws to enforce liabilities in civil actions by imprisonment of the person under certain circumstances for long and undefined periods, and such power was exercised in numerous cases to the fullest extent of which the power was susceptible.

A sense of common humanity springing from the people of the state prompted the late legislature to reduce and fix the limit of imprisonment as a means of enforcing a civil liability. Accordingly the legislature passed the act under consideration, and by section 7 of it, gave it immediate effect and declared it applicable to all imprisoned debtors, not simply to those who should be thereafter imprisoned but to all who then were in actual confinement or within the jail liberties under any mandate against the person theretofore issued.

Nor did the legislature stop with this declaration of the law and leave it for the imprisoned to avail himself of its benefits by his own action, but it imposed the duty upon the sheriff of each county within the state to discharge, within five days from the passage of the law, all persons in their custody who are entitled to be discharged under section 111 of the Code as amended.

That brings us to the consideration of section 111, which is as follows:

“§ 111. No person shall be imprisoned within the prison walls of any jail for a longer period than three months under an execution or any other mandate against the person to enforce the recovery of a sum of money less than $500 in amount or under a commitment upon a fine for contempt of court in non-payment of alimony or counsel fees in a divorce case where the amount so to be paid is less than the sum of §500, and where .the amount in either of said cases is $500 or over, such imprisonment shall not continue for a longer period that six months. ' It shall be the duty of the Sheriff, in whose custody any such person is held, to discharge such person at the expiration of said respective periods without any formal application being made therefor. No person shall be imprisoned within the jail liberties of any jafi for a longer period than six months upon any execution or other mandate against the person, and no action shall be commenced against the sheriff upon a bond given for the jail liberties by such person to secure the benefit of such liberties as provided in articles fourth and fifth of this title for an escape made after the expiration of six months imprisonment as aforesaid. Notwithstanding such a discharge in either of the above cases, the judgment creditor in the execution or the person at whose instance the said mandate was issued has the same remedy against the property of the person imprisoned which he had before such execution or mandate was issued, but the prisoner shall not be again imprisoned upon a like process issued in the same action or arrested in any action upon any judgment under which the same may have been granted. Except in a case hereinbefore specified, nothing in this section shall effect a commitment for contempt of court.”

I quote the entire section in order to present the general scheme and spirit of the act. It is the plain intention of the legislature to embrace within the benign influence of this section every person then or thereafter imprisoned, either within the prison walls or within the liberties of any jail, and whether under any execution or any other mandate against the person, and to limit their imprisonment to the specified periods of three months for the recovery of sums under $500 and to six months for the recovery of sums of $500 and over. It is then made the active duty of the sheriff to discharge all such persons without condition or exception from his custody after the expiration of such period and without any formal application being made therefor. The next paragraph of the section is “no person shall be imprisoned within the jail liberties of any jail for a longer period than six months upon any execution or other mandate against the person, and no action shall be commenced against the sheriff upon a bond given for the jail liberties by such person to secure the benefits of such liberties as provided in articles 4 and 5 of this title for an escape made after the expiration of six months imprisonment as aforesaid.”

There would not seem to be any room for doubt or cavil in relation to the meaning of this paragraph. Imprisonment within the jail liberties of a jail has a fixed and well defined legal signification. Peters v. Henry, 6 J. R., 121; Brown v. The People, 75 N. Y., 438, 440. It cannot now and never could have resulted but from one course of procedure, and that way was and is for the person imprisoned whether under an order of arrest or execution against the person, to give the sheriff having him in custody a bond, if he is in custody under an order of arrest, in a penalty of twice the sum in which the sheriff was required to hold him to bail, or if he is in custody under an execution, then a bond in a penalty twice the sum directed to be collected by the execution. §§ 149, 150, C.ode.

The prisoner whether he is held under an execution against his body or order of arrest, is entitled to give bond for the liberties of the jail, and having given the bond provided by statute, is absolutely entitled to be discharged from such imprisonment after six months under the amendment of section 111, Code, whether such imprisonment was originally under an execution or any other mandate against his person.

However counsel may discuss or criticise the language in the former part of section 111, viz., under an execution or any other mandate against the person to enforce the recovery of a sum of money, such criticism or restricted meaning has no application to the words, “or other mandate against the person, ” in the third paragraph of the section. I am quite clearly and decidedly of the opinion, after such examination as my limited time would allow of the state of the law before these amendments, that the purpose and effect of these amendments were to limit the period of imprisonment in civil actions to six months, or at least to six months upon any one process that can be employed in the course of a civil action, except for contempts of courts in other respects than the non-payment of alimony and expenses of matrimonial actions. It seems to me that the purpose and language of the law and amendments, and their harmony and consistency, require such construction. Some of the reasons for such construction will be found in the fact that the act is to take effect from the day of its passage, and its direct effect in express terms was to discharge all persons, whether restrained in actual confinement within the said walls or within the jail liberties under any mandate against the person. There was no constitutional consideration in the way of passing such an act, for these provisions of law have relation to the remedies for rights, and not to the rights themselves. It is moreover, a humane and remedial act, and as such should receive a liberal construction, and that construction which will best promote the object of the legislature.

This view that six months is the maximum period of imprisonment, is confirmed by the. provisions contained in section 572 of the Code as amended, that the plaintiff is no longer to have the absolute right to imprison the defendant in a civil action.

If the plaintiff unreasonably delays the trial, or neglects to enter judgment, or to issue execution against the person for ten days after it is in his power to do either, or for three months in any event, or where the plaintiff in an action or a judgment creditor delays the enforcement of his remedies by collusion, or for the purpose of allowing the defendant to remain in prison under a mandate in another action, before issuing the mandate which he may issue, so as to produce a continued and extended imprisonment by virtue of separate mandates in different actions, the defendant may apply to the court to be discharged from custody in the action in which he is imprisoned or to berelieved altogether from imprisonment under a mandate in another action in which hé has not been imprisoned, and when so discharged he shall not be arrested upon any execution issued upon the judgment in said action. Nor do I think it a very serious or weighty consideration in the construction of this act, that the language employed in the fore part of section 111 is, “ Or any other mandate against the person to enforce the recovery of a sum of money.”

An order of arrest is a mandate. It is an order by a court or judge commanding the sheriff to arrest the defendant, and to detain him until he shall give one of the.bonds conditioned as, or make the deposit required by, law for his release. § 3243.

Justice Oorlett held, in so many words, in N. Y. C. and H. R. R. Co. v. Shepherd (1 N. Y. State Rep., 19), that an order of arrest in that case granted by a judge is a mandate, The language above quoted is used to characterize the action, like the phraze: “An action for the recovery of a sum of money,” or “An action for the recovery of money only,” and to distinguish from actions for equitable, or matrimonial actions or actions for specific performance, in which orders or mandates to imprison arise from contempt of court for disobedience to its judgments or orders.

It may be well, for distinction sake, to characterize orders of-arrest in actions for the recovery of a sum of money in this way, and when used in the alternative with “execution,” its meaning clearly indicates a class of mandates distinct from executions. If it means the same thing as “execution,” then the legislature was guilty of tautology.

It may be said, in an inexact sense, that an order of arrest is a mandate against the person to enforce the recovery of a sum of money; not necessarily a recovery already had, for that would be an execution, but a recovery to be had in the - progress of the action. Its office is to have the defendant where the sheriff may, without going outside of his county, take the defendant’s body in enforcing the judgment for the recovery of money. This mandate is satisfied in law when the defendant shall give the sheriff a bond that he will be amenable to the process of the court, viz., an execution upon the judgment, or a bond that h,e will not depart the liberties, and so be amenable to the execution to enforce the recovery. The practical effect is the same in either case.

Now, we have before seen that the defendant may become a prisoner upon the liberties, whether arrested upon a judge’s order or upon an execution, and when a prisoner upon the liberties, he is absolutely entitled to his discharge after he has been within the jail liberties six months. It would appear very anomolous indeed that a defendant may be arrested and confined within the walls of a jail indefinitely upon a judge’s order, and yet by giving bond for the liberties after his arrest upon such order, he could have the freedom of the whole city and county of New York for six months, and after that expired the freedom of the whole world.

The construction that the maximum time of imprisonment is six months will avoid another inconsistency, and which would seem to be a hardship. Under an execution against the person, where the defendant’s fraud or wrong is proved and adjudicated, it is conceded he can only be imprisoned for a period of six months, but yet it is claimed that under a judge’s order of arrest, though his fraud or wrong has not been proved or adjudged, and may never be, he may be imprisoned indefinitely.

The title of the act under consideration and the various sections, not relating to executions, amended by it, would indicate that it was not intended solely to imprisonment under executions. The title of the act is “An act to amend the Code of Civil Procedure.”

They are amendments of various sections of the Code in relation to imprisonment under executions and mandates in order of arrest, and the sections amended are to be found in the chapters two and seven of the Code; the former of which is entitled “Powers, duties and liabilities of a sheriff or other ministerial officer in the execution of the process or other mandate of a court or a judge in a civil action,” and the latter is entitled “General provisional remedies in an action.”

My conclusion is that the relator and the defendant are entitled to be discharged from imprisonment.  