Majority
p. 479SUPREME COURT. Jonathan Peel, &c. agt. James Sutton Elliott. New - York General Term, October lst, 1858.
Headnote
Tho practice on an extent in England defined by Hogeboom, Justice.The preliminary inquisition in such a case, though made by a jury and placed on record in the court of exchequer, has not, being a purely exp arte proceeding, tho effect of-merging the original cause of action or of depriving the plaintiff of a provisional remedy incident to that cause, in an action brought in this state.
A record, to have this effect, must be the result of the proceedings of a court in which jurisdiction has been acquired of the person of the defendant.
The right of a plaintiff to a provisional remedy, incident to the nature of his action, must he governed by the cause of action on which he must rely for a recovery. A mere error of definition or superfluity of statement in the complaint, does not avail to deprive him of that right.
The court did not assume to decide between the conflicting cases of Goodrich agt. Dunbar, ( 17 Barb. 644 ,) and Wanzer agt. De Baum, (1 E. D. Smith, 261.)
Present: H. E. Davies, Josiah Sutherland and Henry Hogeboom, Justices.
This is an appeal by the defendant from an order of Justice Davies, refusing to vacate or discharge an order of arrest originally granted by Justice Ingraham.
The latter order was granted on the 15th day of July last,
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at the time of commencing this action, simultaneously with the issuing of the summons, and was founded' upon an affidavit of the plaintiff’s attorney, of the facts entitling the plaintiff thereto. A motion to vacate the order of arrest,, was made before Mr. Justice Ingraham, based upon the supposed insufficiency of the affidavit before referred to, which motion was denied, with liberty to renew the same on affidavits oh the part of the defendant. The defendant availed himself of this privilege, and renewed the motion to discharge the order of arrest before Mr. Justice Davies, upon his affidavit and the papers before used, and the same was met by counter and additional affidavits, on the part of the plaintiff. The case presented substantially the following facts:
The defendant was on and prior to the 20th day of May, 1858, her Britanic majesty’s principal military storekeeper at Weedon, England, and as such was charged with the disbursement and payment to the persons entitled thereto, of various large sums of money, from time to time intrusted to him for that purpose, by the war department, of which the plaintiff was the principal secretary of state, and as such secretary, having or claiming the care and custody of the property of that department, and the right to prosecute in his own name any actions or proceedings for or concerning the same. A portion of the moneys thus intrusted to the defendant, he failed to disburse and pay over according to law, and appropriated them to his own use, under pretence of satisfying a claim which he alleged he had against the department for arrears of pay, fees and perquisites, and which he claimed he had a legal right thus to satisfy. On the contrary, the plaintiff claimed that this amounted to an embezzlement and fraudulent misapplication of those funds by the defendant, as a public officer; and a fraudulent conversion of the same to his own use.
The defendant having left or absconded from England, about the 20th of May, 1858, and come to this country, a paper supposed in these proceedings to be a writ of extent, was sued out by her majesty in the court of exchequer, directed to certain commissioners therein named, to inquire through a jury
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and witnesses, whether the defendant was indebted to her majesty for any sums received by him as such military storekeeper, for her majesty’s use and not paid over, and if so, in what sums, and duly to take an inquisition thereof, and return the same to the court of exchequer. By the same writ the sheriff of Middlesex was commanded to summon the jury for such purpose. To this writ the return of the commissioners and the inquisition are annexed. By the latter, it is found that the defendant, “ James Sutton Elliott, late of Weedon, in the county of Northampton, principal military storekeeper in the war department, in the said commission also named, is on the day of taking this inquisition justly and truly indebted to her majesty in the sum of two thousand two hundred and twenty-three pounds and three pence, for money received by the said James Sutton Elliott, for her majesty’s use. and which he the said James Sutton Elliott, should have appropriated in payment of various sums due on her majesty’s account, but which the said James Sutton Elliott, had neglected to do.” These last facts as to the aforesaid-commission, the return and inquisition, appear by an exemplified copy thereof) under the seal of the court of exchequer, and said papers are described in such exemplification as “ a certain record remaining amongst the remembrances of our court of exchequer, at Westminster, that is to say, amongst the records of Trinity term, in the twenty-first year of the reign of Queen Victoria.” The complaint in this action which is verified on the 1 Oth day of August, 1858, after setting out the title of the plaintiff, and his right to sue for the cause of action therein set forth, alleges the appointment of the defendant in October, 1855, as a public officer in the war department, to wit: principal military storekeeper in the said war department at Weedon, and his continuance in said employment till about the 20th day of May, 1858, when he absconded therefrom; that he was as such storekeeper intrusted with divers property of said department, and especially with divers large sums of money for payment to the persons entitled thereto, a portion of which he neglected to pay or apply, and did on and before the 20th day of May, 1858, frau
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dulently and wrongfully, and with misconduct and neglect of the duties of his said office, embezzle and misapply, and convert to his the said James Sutton Elliott’s own use and purpose, a large sum of money, part of such moneys so intrusted him as aforesaid, to wit: the sum of two thousand two hundred and twenty-three pounds and three pence, currency of the said United Kingdom of Great Britain and Ireland, the same being of the value of ten thousand eight hundred and eighteen dollars and sixty-six cents, currency of the United States of America, in fraud of the department and in breach of his duties as such public officer, and fraudulently and wrongfully misconducted himself, and absconded from the duties of his office, without discharge therefrom, and without applying or accounting for said money, and that he has never since applied the same or accounted therefor.
The complaint then states that on such embezzlement and absconding, a writ of extent was duly issued, and an inquisition was also takgn under such extent in due form of law, whereby the defendant was found indebted (substantially as set forth in said inquisition,) as appeared by an exemplification of the said extent and inquisition, under the great seal of the said court of exchequer, to which he craved leave to refer. It then sets forth that the defendant has never repaid, applied or accounted, for the said sums, but is indebted to the plaintiff therefor, with interest from the 12th day of June, 1858, the date of the said inquisition, and demands judgment for that sum, with the costs of the action.
The defendant details in his affidavit, the circumstances under which he became entitled as he alleges, to the fees and perquisites ; exceeding the amount of the plaintiff’s claim, and which he applied in satisfaction thereof; and claims the right .to apply in this action as a set-off or counter claim thereto.
The plaintiff’s affidavits sufficiently substantiate the relation ■of the parties, the deficit in the accounts, and the misappropriation of the moneys. The only question argued upon the appeal was, whether this was properly an action for money received, or property embezzled, or fraudulently misapplied by
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a public officer, in the course of his employment as such, or by a person acting in a fiduciary capacity, or for misconduct or neglect in office, or whether the original cause of action, assuming it to have been such as would have justified an order of arrest, had been waived, merged or extinguished, by the proceedings taken in England, under the extent and inquisition ?
C. A. Seward and A. Oakey Hall, for defendant
I. T. Williams, with whom was H. Whittaker, for plaintiff, made and argued the following points :
This is an appeal from an order denying a motion to discharge the defendant from arrest. It is admitted- that the affidavits, &c., u¡Don which he is held, are sufficient, unless the proceedings called “a writ of extent,” have so affected the relations of the parties, that the defendant cannot now be held to bail.
The only question now presented to the court for their decision is: Has the proceedings taken in England, as the same is set forth and appears in the papers before the court, so changed the relation of the parties, that the defendant cannot now be held to bail?
I. What were those proceedings, in fact ?
1. The assertion on the part of the defendant, that the action is brought or founded upon those proceedings, is not only without foundation, but without the slightest pretext.
2. The cause of action is clearly set forth in the complaint, to wit: The official character of the defendant; that he received the money sought to be recovered in an official character, for certain specified uses and purposes of his government or principal; that he neglected so to apply the money, but on the contrary thereof, appropriated it to his own use, and thereupon absconded from England. It then proceeds to say, that at the suggestion of a government officer, a commission was issued out of the court of exchequer to two commissioners, directing them to inquire of a jury, (which the same commission directed the sheriff of that county to caE before such
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commissioners,) whether the said defendant had so misappropriated the said moneys, and if yea, to what amount ? That in obedience to the mandate of that commission or writ, a jury was by said sheriff, called before said commissioners, and thereupon the commissioners made such inquiries of the jury, who found and returned to said inquiries, that the defendant was indebted to the government in the sum of two thousand two hundred and twenty-three pounds and threé pence sterling, for moneys he had so received as such officer for such purposes, and which he had neglected so to apply to the uses and purposes for which they were received by him, but on the contrary had converted the same to his own use, and was therefore indebted to the government in the said sum of two thousand two hundred and twenty-three pounds and three pence sterling.
The complaint states, that these proceedings were taken according to law, and prays leave to refer to an exemplification of the return of such commission, which is produced before the court on this motion, and read as a part of the papers thereon.
The court will, therefore, look into this exemplification and see precisely what it imports, and will examine the law to see what the proceedings amount to, if they were (as is alleged in the complaint) according to law.
■The suggestion of the defendant’s counsel, that the plaintiff in this motion must be confined to his statements contained in the complaint is not tenable. The plaintiff may oppose the motion upon such papers and affidavits as he sees fit, and the court will look into them all to see what the facts really are. The statements in the complaint are not of the least importance, for that paper was not drawn for this purpose. It is not the office of a complaint to furnish evidence for holding to bail. This is done by affidavits and other papers, and may be done, though the complaint shows the action to be upon a simple contract claim, as upon a promissory note, &c. (Cheny agt. Garbat, 5 How. 467 ; Masten agt. Scovill, 6 id. 515 ; Field agt. Morse, 7 id. 16; Delamater agt. Russell, 4 id. 234; Burkle agt. Ellis, 4 id. 288; Corwin agt. Freeland, 2 Seld, 560.)
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If the court will look into the papers, they will find that nothing more has been done than what is above stated.
II. What is the legal nature and character of those proceedings ?
The term “ extent,” seems tó be applied to the whole of the proceedings that may be taken for the collection of crown debt. The term extent is, however, properly applicable only to the writs which are issued to the sheriff.
The first writ is an extent in chief, or an immediate extent, and the second is an extent in aid.
The extent in chief is issued on the coming in of the commission issued to the commissioners as above, described. It is founded upon the return or finding of the jury, which return fixes the amount of property the sheriff may attach or the amount in which he may hold the defendant to bail, and is in the nature of a capias ad respondendum, and an attachment united.
This proceeding preliminary to the commencement of a suit is peculiar to suits by the crown. A private individual can have his capias on filing an affidavit by which the amount in which he may hold the defendant to bail is fixed; but the crown (so great was the jealousy of our ancestors for'the liberty of the subject, and so fearful were they of oppression iroin the crown) was by statute of 33 Henry VIII, chap. 39, compelled to submit such an affidavit to a jury, for them to find that the statements therein were true before the crown could have a similar process.
Upon the return of this writ, the suit proceeded as in any other case. If the defendant was found and brought into court a judgment was obtained against him in personam. If not found, and his goods or lands were taken, then the proceedings were in rem, as in similar cases both in that country and in many states of this. The defendant might voluntary appear, and in that case, his rights would be the same as if brought into court by the sheriff upon his writ of extent in chief.
The extent in aid was a proceeding after the return of the
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writ in chief, and. has nothing to do with this case, and therefore need not be discussed. The return shows that this proceeding was nothing other or different than a proceeding upon which to found an extent in chief which has been explained. All the cases cited by the defendant’s counsel, are cases of an extent in aid as they admit. At all events, the papers do not show that anything further or other than the issuing, execution and return of this commission has been had, and the court will not indulge in any presumptions of future proceedings. Indeed, the papers show that no other proceedings were had, for 1st. The defendant had absconded, or at all events left the country; and 2d. The defendant both in Ms affidavit and answer, swears that he knew nothing of the proceedings, that they were ex parte, without notice to him, and that he is in no way bound by them.
It is true, that these proceedings were both ex parte and secret, that the defendant has no right to oppose them or have notice thereof. That their only purpose and office is to furnish proof upon which the defendant and his property might be •taken on mesne process. This practice is fully discussed and explained in Regina agt. Ryle, (9 Mees. & Welsby, p. 227.)
The careful attention of the court is called to the statement of that case, the statutes cited, and the argument or rather statement'of the solicitor-general, Sir William Follett, both in Ms opening and reply. The court will not be misled by the statement of Mr. Cbesswell, who mistakes wholly the statutes under which the proceedings are had. The whole court concur with the solicitor-general, and Baron Bolee thinks the proceedings are not different in character from what they would have been if the process could be issued simply' upon the filing of an affidavit, as in the case of a private individual. (The foregoing will be found only in the case as reported by Meeson & Welsby.)
III. Is there anything in this proceeding that should take from the plaintiff a right which he would otherwise have had, to wit: a right to augment his security by holding the defendant to bail ?
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If so, it is on some anomalous principle, certainly not on the principle of extinguishment, for the operation of that is to blot out a debt, not to waive a remedy. It is not a waiver, for nothing is waived. The jury found the facts, (see exemplification,) what else could the plaintiff do to signify his adhesion to all his rights in the premises ? Is not a waiver a question of intent ? If a party takes a higher security and thereby extinguishes a lower security, does he not intend to take it? Would it operate as an extinguishment if it failed to appear that he intended to receive it ? Can there be a waiver without a consent expressed or implied ? And if the plaintiff did all he could to signify his intent to adhere to all his rights and remedies, Avhat evidence is there of an intent to waive ?
The defendant lays stress upon the fact that the finding of the jury is entered of “ record.” But does a record necessarily waive any prior existing remedy ? Everything is a record that is recorded or filed with the clerk of the court. The statute of this state provides that in order to enforce and establish a continuance of liens for work, labor, &c., the party shall file a statement of the items of his claim Avith the clerk of the court, duly verified by his affidavit, and that thereupon the clerk shall record the same, (a proceeding singularly analogous to those had in the case now before the court,) and the claim is thereupon spread upon the records of the court. Does any one pretend that thereby the simple contract is extinguished by a higher security ? that a suit brought setting forth the work and labor done, &c., and the filing of the items and affidavit and the record thereof by the clerk, would under our former practice have been an action of debt upon a record ? that an action upon the simple contract debt could not have been maintained ? It might as well be said that before recording, a suit might bo brought upon a mortgage, but that after the mortgage is recorded the suit must be founded upon the record.
The defendant lays stress also upon the fact that the j ury found that the defendant is “ indebted,” See. But if the “record ” also sIioays that it is one of those classes of indebtedness for which a party may be held to bail, hoAr does it help his
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case? If the defendant thinks the word “ debt,” ought'not to have been used, perhaps he will also object to that word in the Code, where it provides that if the “ debt ” has been fraudulently contracted, the defendant may -be held to bail. (See Code, § 179, sub. 4.)
The word debt is a word of the broadest -possible signification, it includes all classes of obligations and liabilities, whether sounding in tort or contract, whether incurred “ in office,” or by a “person in a fiduciary capacity,” or where the party has otherwise “ been guilty of a fraud in contracting the debt or incurring the obligation.” (See 3 Met. R. 522, 526 ; 2 Stephens’ Com. 186, 187, and note; 1 Bur. Dic. p. 342 ; 1 E. D. Smith’s Rep. 261.)
IY. Let the proceedings recited in the document before the court, amount to what they may, no authority has -been shown for saying that the plaintiff must thereby be deprived of an essential part of his remedy againstrihe defendant, in.this-action. It might well be presumed that in a case of so much importance as the present, if any authority existed.it would have been produced.
We are referred to the case.of Goodrich agt. Dunbar, (17 Barb. p. 644,) for the only authority that is attempted .to be produced, and upon" which alone the defendant relies.
Of that case it may be remarked: 1. It does not appear-to have been considered .in- the light of authority either by the court or counsel. Ho. case, doctrine or other authority is referred to by counsel or-court, either in the argument or in the opinion.
"2. Every syllable of that case upon .which the defendant would rely is sheer obiter dictum.
The court on the first branch of the case, came to the.conclusion that had there been no suit or judgment in California, still the defendant could not be held to bail upon the facts as they were made to appear before the court. It was, therefore, unnecessary to consider the effect of the judgment, and .all that is said upon that subject is entirely obiter.
But upon the second branch of the case, i. e., the effect of
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the judgment, had it been necessary to consider it, no point was made. There was no riiing, and consequently nothing is or could have been decided. If the judgment roll did not show a case for arrest, (and the court held it does not,) no point could have been raised without offering proof aliunde the record, to show that the cause of action was one for which the defendant might by the provisions of the Code be held to bail. jESTo such proof being offered, the court had nothing to rule upon, and consequently could decide nothing. It is, therefore, insisted that no authority whatever has been produced for the doctrine which the defendant relies upon. The opposite doctrine is clearly held in the case of Wanzer agt. De Baum, (1 E. D. Smith’s R. p. 261.)
V. Assuming the exemplification before the court to be a record importing verity, (and this is all the defendant claims for it,) it is an absolute nullity for every purpose, save perhaps two: first, it may fix the time from which interest should run, and it will do that provided it amounts to a demand for the money: and second, if it should be pretended that a suit cannot be brought in this country in behalf of the crown, unless the demand were in such a situation that an action could be commenced upon it in England, then these proceedings would obviate that objection by showing that such proceedings had been so taken, and, therefore, the demand would have been sueable in England.
For these purposes it was set forth in the complaint: 1. If a record, it is a record of nothing save what it contains. The court will then look into the record to see what it is a record of. By an inspection of that record, it will be found:
First. To recite nothing but a necessary ex parte proceeding upon which to found mesne process in the nature of a warrant of arrest and attachment against the person and property of the defendant. If this be so, then the defendant is reduced to the necessity of embodying his proposition in the following form, viz : “The plaintiff may not lay the foundation for a process to arrest my person, because by doing so he waives the right to arrest me at all.”
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Second. It will find that it contains no recital that the defendant was in court, either by its process or by voluntary submission of his person to its jurisdiction. In the absence of recitals in the record to this effect, the record and all proceedings thereby proven or referred to, are absolutely void. (Hulbert agt. The New Hope Mutual Insurance Co., 4 How. per Sill, J., on page 276 ; S. C., affirmed, id. p. 415 ; 13 J. R. 192 ; 15 J. R. 121, 142; 5 J. R. 37; 8 J. R. 87, 91, 193 ; 6 Cowen, 494; Story’s Conf. of Laws, 549, and note opinion of Judge Parsons.)
Third, It will find that the jury found that the defendant while acting in a fiduciary capacity and in office, appropriated money which he had received in such capacity and in such office, for the use of his principal to his own use, and had neglected to pay it over as he ought to have done. That such a' secret ex parte proceeding with the intent and purpose for which this was done, should have the effect.of waiving a remedy, is little less than an absurdity on its face.
Can a waiver take place, unless from the facts and circumstances of the case, it is inferrible that the parties intended it ? Here it is shown that the intent of the act done was entirely of an opposite character by the only party who had or now has any knowledge of what was done, (for the defendant swears in his affidavit and answer, that he had and now has no knowledge or notice whatever of this proceeding.) Can an extin-' guishment be worked by elevating the nature of the security, where the act which is claimed to have so changed the character of the security was one to which the defendant neither assented nor had any knowledge of? If the character of the security was changed, it must have been by extinguishing the former security and receiving a higher security in the place of it. What evidence is there that the plaintiff ever consented to extinguish the former security ? What evidence is there that the defendant ever gave the higher security ? This could not have been done' by the court, for the court had no jurisdiction of the defendant, and could not affect or vary his rights without first bringing him before it, thereby acquiring jurisdiction over him. But the record here produced, shows no
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adjudication of any court whatever. The bare finding of a jury, though their finding be recorded ever so many times, never operated to extinguish a claim. It is the judgment of the court, entered upon the finding of a jury, and the record of that judgment that works this effect. Here is no judgment of any court, no record of any judgment. The position of the defendant in any view of it, is entirely unsupported by the facts or the law of the case. It cannot be substantiated upon any of the hypotheses he presents, either on principle or by-adjudications.
It is insisted, therefore, that the order appealed from should be affirmed with costs.
The question presented for the consideration of the court in this case is, whether the defendant ought to remain under arrest within the provisions of subdivision 2 of section 179 of the Code? That section authorizes the arrest of a party in an action for money received or property embezzled or fraudulently misapplied by a public officer, or by a person in a fiduciary capacity, or for any misconduct or neglect in office. The question was argued wholly upon the effect of the judicial proceedings taken in England upon the case, and I do not, therefore, propose to discuss the question whether the defendant for acts done in England, amounting to a fraud or official misconduct towards that government, can be held to arrest here as a public officer, or guilty of official misconduct, or whether our statute is limited in its operation to cases of misconduct occurring within its own jurisdiction, or towards its own government. The precise question to be disposed of, therefore, is, whether the legal proceedings which have taken place in England, have essentially altered the original cause of action, and so deprived it of its original character or qualities, that in its present shape the action can no longer be said to be an action for money received or property embezzled or fraudulently misapplied by the defendant as public officer, or for misconduct or neglect in office. This must be determined by ascertaining the legal character
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istics of the cause of action, on which the plaintiff must rely for a recovery in the form of action which he has adopted. I say the cause of action on which he must rely for a recovery, rather than the cause of action on which he has prosecuted, or which he has set forth in his complaint, for if all the facts as now developed, show-that he must rely upon the extent and inquisition, and that he cannot go back to the original official misconduct as the ground of recovery, then we must look at the extent and inquisition, and determine whether they have so far altered, merged or extinguished the original cause of action as to deprive it of those properties upon which the right to obtain an order of arrest is founded; we are driven, therefore, to investigate the character and effect of the proceedings in England, in order to determine this motion. These proceedings are denominated in the complaint in this action, a writ of extent and an inquisition thereon; but I think improperly so. They are merely the commission and inquisition which are resorted ' to in England as preliminary to, and the foundation of the writ of extent and inquisition, which are subsequently issued and taken. So far as I have been able to gather or understand the practice in England upon this subject, it is this:
When the queen desires to recover a simple contract debt against a subject, she may proceed by action of debt, or by a scire facias or extent, but writs of sci. fa. or extent must be founded upon matter of record, and, therefore, before proceedings can be taken to collect a sinple contract debt, it must be entered of record. (2 Tidd’s Prac. 1092 ; Regina agt. Ryle, 9 Mees. & Welshy, 239.)
To put the simple contract debt in this shape a commission is issued out of the court of exchequer, directed to two commissioners, and always executed in Middlesex, to inquire as to the indebtedness and its amount, under which an inquisition is taken to find the debt. When thus taken, returned and filed, it becomes matter of record, and the proper foundation upon which a writ of extent issues. It is precisely this, and no more, which has been done in the present case, according to the exemplified proceedings which are presented on this
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motion. No notice to the defendant is given of the execution of this commission, and none was given to the defendant in this case, and generally no evidence is given of the debt in these preliminary proceedings except the affidavit of danger which is made for the purpose of procuring the writ of extent, which is the next proceeding. (2 Tidd’s Prac. 1093.)
This affidavit states the existence and origin of the debt, and that it is in danger of being lost in consequence of defendant’s insolvency, bankruptcy or absconding, or other act leading to a like conclusion, then a fiat issues for a writ of extent signed by the chancellor of the exchequer or a baron, and upon this, (after the preliminary inquisition is returned, and filed,) the writ of extent issues. This writ when issued to collect a debt due to the queen, (as it would be in the present case if the proceedings were continued in England,) is called an extent in chief when issued as it sometimes may be in behalf of the crown debtor, (though in the name of the king or queen,) against his debtor, it is called an extent in aid, because its object is to aid in obtaining payment of the debt due the crown. This writ is directed to the sheriff and commands him to enter same and take defendant, and to inquire by a jury what lands and tenements, goods and chattels and debts, the defendant has (or had) and to appraise and extend the same, and take and seize them into the king’s (or queen’s) hands. (2 Tidd’s Prac. 1094; Sewell on Sheriffs, 264; Watson’s Sheriff, 247.)
Under this writ an inquisition is taken in obedience to its injunctions, and on its execution all parties interested may appear and give evidence, and sometimes the court is applied to to require reasonable notice of its execution to be given, although no notice is given in ordinary cases. As yet it will be observed there is no command to sell the property seized. Therefore, on the return day of the writ of extent, a rule is entered that if no one appear and claim the property of the goods in sennight, a writ of venditioni exponas, shall issue to sell the same. (2 Tidd’s, 1115 ; Sewell, 281.) If there is no appearance the property is sold under the last named writ. If the defendant or other parties interested in the property appear,
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as he may do, he may oppose the proceedings, which is done principally in two ways, either by a motion to set aside the proceedings if there are legal objections thereto, or by a traverse. On a traverse the party enters his appearance and claim of property, then a rule to plead is entered, and the defendant puts in his pleas, which may contain any matter of defence, and among others that the debt does not exist or has been in some way paid or satisfied. To these pleas a replication, (if necessary,) is interposed, and an issue being formed, the cause goes to trial in the ordinary way before a jury. (2 Tidd’s, 1124 to 1128.) A postea is made up and a rule for judgment entered. In practice, except where the defendant wishes to bring a writ of error, a judgment is seldom entered up when the verdict is in favor of the crown, as the latter is already in possession of the property under the writ of extent, nor does an execution issue, the cause being left to take the same course as if no appearance or claim had been put in. If the defendant succeeds on the trial, he is restored to the property by a writ of amoveos manus. (2 Tidd, 1128, 1129.)
This brief recital of the English practice, will help materially to illustrate this case. The proceedings in England, so far as they have taken place, are only preliminary, in their character entirely ex parte, and only resorted to as a foundation for a proceeding peculiar to England, at any rate wholly unknown to us under our present system, to wit: the writ of extent. It is possible that in England, an action of debt might lie in behalf of the crown upon the debt thus found by these preliminary proceedings, as it would lie upon the simple contract debt existing before the proceedings were initiated. I do not know whether this is so or not, but if it be so, I should have some doubt if England had a statute like ours in regard to arrest, whether the character of the claim would be thereby so .entirely metamorphosed as to forbid an arrest. I should think it certainly would not be if the plaintiff had his election either to sue upon the original simple contract debt or the debt of record, which was the result of the preliminary proceedings. There would have occurred no satisfaction of the debt, no vol
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untary change by the mutual consent of the parties of the character of the debt, no particular equity for depriving the plaintiff of his original remedies, nothing indeed occurring but a proceeding which gave greater certainty, precision and permanency to the debt. Still if the plaintiff was restricted to his remedy upon the debt of record, it might well be said his cause of action was not the same as at first. In the first proceeding he would be obliged to proceed upon the original cause of action, the simple contract debt. In the other case, he would be obliged to proceed upon the record debt, and would neither be required or allowed to go back to the original cause of action. But taking the facts of this case, I do not see how he could found an effectual or conclusive cause of action upon an ex parte proceeding. It is as to the defendant as if it had never taken place. I know of no transaction upon which a right of action against another can be founded, unless he has in some way become a party to it, or unless in some legal proceeding jurisdiction of his person had been obtained. Even, therefore, if the action had been prosecuted in England under a statute similar to ours, I think the plaintiff could not rely for a recovery upon what are (erroneously) called in this case, the extent and inquisition, for the reason that the proceeding was wholly ex parte and liable to a jurisdictional objection. He would be driven therefor to. his original cause of action. But in this state, we have no writ of extent, no proceedings in any way analogous, and the plaintiff institutes the ordinary action to recover his debt. In his complaint it is very apparent that he sets forth all the facts independent of the extent and inquisition, which he would have set forth if he had been suing upon the original 'cause of action alone. But he sets forth also, the extent and inquisition, as on this motion he alleges not as the substantive cause of action, but as a fact in the history of the causé of action, giving at most precision and certainty to his claim, and furnishing a date from which to charge interest. On the other hand, the defendant claims that it is put forth as the real and substantive cause of action, the record on which the plaintiff relies for a recovery, and that the other
p. 496
allegations are only by way of introduction or inducement. But it is clear to my mind, that it is not a record in the ordi? nary sense of that term; that is, a matter conclusive upon the parties, incapable of contradiction and importing absolute verity.
■ In a restricted sense, it is a record like a recorded mortgage or a recorded deed; that is, it is entered of record. But it has not even the force of a recorded deed or mortgage, for they " purport to be the act and bear the signature of the adverse party, whereas this is a wholly ex parte proceeding, and would have no more inherent force than a judgment, decree or record made upon the party’s own motion without notice to the adverse party, in a case where the practice of the court required the facts in the complaint to be verified by a disinterested wit- " ness. I think such a proceeding independent of a statute giving it efficacy, can have no such force by the principles of the common law as a substantive cause of action as would allow of its being declared on as such, or as having inherent vitality, independent of the aliment or support it derives from the original cause of action. If this be so, then the so called extent and inquisition amount to nothing as a cause of action, and if they are ineffectual for that purpose, they are also ineffectual to deprive the plaintiff of the benefit of the circumstances under 'which the original cause of action arose. In other words, the plaintiff has not, even if he originally attempted to do so, succeeded in so altering, merging or extinguishing his original claim, as to give it a new character or make it a new thing. The present action is still an action to recover money or prop- . erty embezzled or fraudulently misapplied by a public officer, or for misconduct or neglect" in office.
The result at which I have arrived upon this part of the case, contrary I am free to say, to my original impression, makes it unnecessary for me to examine the question whether in case the plaintiff had succeeded in transforming his original claim into a judgment, he would thereby have perfected the right to arrest the defendant incident to his claim in its original character. Upon that subject, the authorities so far as they
p. 497
have gone, are conflicting. Judge Mitchell, of the supreme court, in Goodrich agt. Dunbar, ( 17 Barb. 644 ,) maintains the affirmative of this proposition, while Judge Woodruff, of the common pleas, in Wanzer agt. De Baum, (1 E. D. Smith's Reps. 261,) as strenuously upholds the negative. I do not think the present case calls for a decision of that question.
I am, therefore, of opinion that the defendant is not entitled to be discharged from arrest, upon the ground argued before us on the appeal, and that the order of the special term should be affirmed with costs.
Order affirmed accordingly.
Cases cited
- Goodrich v. Dunbar 17 Barb. 644 p. 479, p. 497