
    Brown vs. Treat & Carter.
    Where the first two counts of a declaration were in assumpsit, the third in case, charging negligence of the defendants as werehouse-men in not safely keeping, &c. goods, and the fourth in trover for the goods; and the plaintiif, having obtained a general verdict of guilty upon proof of the defendants’ negligence as alleged, entered up judgment, and issued a ca. sa., on which one of the defendants was arrested; Held, that the imprisonment was unlawful, and the defendant arrested entitled to be discharged.
    
      Semble, that the non-imprisonment act prohibits an arrest, &c. in all suits founded in a credit given by the plaintiff to the defendant, except such as are mentioned in the second section; and that the form of the remedy chosen by the plaintiff, as whether case, trover, or otherwise, will not be allowed to affect the defendant’s rights in this respect
    Motion to discharge the defendant Treat, from arrest on a ca. sa., issued on a judgment obtained in this cause.
    The two first counts of the declaration were in assumpsit, and the third in case, for negligence of the defendahts as ware.house-men, in not safely keeping and delivering to the plaintiff certain goods and chattels. The fourth count was in trover, for the same goods. Plea, not guilty. A verdict was rendered for the plaintiff, on proof of the delivery of the goods to them as warehouse-men, and their negligence as such. The verdict was general, of guilty, on all the counts. This was followed by a judgment, and ca. sa., on which the defendant was arrested.
    
      A. Taber, for the motion.
    
      M. T. Reynolds, contra.
   By the Court, Cowen, J.

The two first counts set out a contract, and the two last were in fact founded on the contract implied by law between bailor and bailee. It is true that the bailor who sues his bailee for not fulfilling such implied contract, may, in form, overlook it, and at his election resort to case or trover according to the nature of his injury. Yet I hardly think the mere form of the action should be allowed to govern the right of imprisonment. The statute, (1 JR. S. 807, 2d ed., § 1,) forbids imprisonment by execution in a suit to recover “ damages for the non-performance of any contract.” The defendant, Treat, has been imprisoned in a case clearly within these words. It seems to me that the statute was intended to reach all those cases wherein the plaintiff may in fact have given credit to the defendant, except such as are mentioned in the second section. He cannot by electing to sue in case or trover, change the truth; and it is in this that the privilege of the defendant consists. The law will not allow that to be done indirectly, which it forbids to be done directly. Bailment to an infant, presents a similar instance. The action being directly for his negligence, will not oust him of his defence, though calling for a plea of not guilty. It may be different in both cases where the gist of the action is tort, and the plaintiff elects to bring assumpsit. The answer may then be, “ you have a right to elect against yourself, though not against me.”

The motion must be granted, with costs, on the defendant (Treat) stipulating not to bring an action for false imprisonment.

Rule accordingly.

CASES ARGUED AND DETERMINED IN THE © w ip.ib mm m © © w ib if OF THE STATE OF N E W-Y O R K, IN MAT TERM, 1841.  