Lockwood v. Van Slyke — 18 How. Pr. 45

Majority

p. 45

SUPREME COURT.

Henry C. Lockwood agt. John Van Slyke.

Headnote

Where in an action the facts are such that an order of arrest might have been obtained, an execution against the person may be issued, although neither the record shows such facts, nor an order of arrest has been obtained.

And such execution may be issued without application to the court. The Code has made no provision for applying to the court or judge for leave to issue such execution. {It will he seen that this decision is adverse to that of Humphrey agt. Brown, 11 How. 481 .)

Erie Special Term, May, 1859.

Question submitted to the court on the following brief.

W. A. Meloy, for plaintiff.

Of the right to issue execution against tne person in the cases comprehended in section 179 of the Code.

Although the record shows no ground for either execution against the person or for arrest, yet, if order for arrest has been granted and not vacated, such execution may bo issued without application to the court. (Cheney agt. Garbutt, 5 How. 467 .)

When the record shows a case within the scope of section

p. 46

179, although no order for arrest has been obtained, nor application to the court made, such execution may be'issued. (Marten agt. Scovill, 6 How. 315 .)

And ex obiter dictum, Mr. Justice Harris, in this case, as well as in Field agt. Morse ( 7 How. 16 ), intimates that even if neither the record shows the action within section 179, nor an order for arrest has been obtained, yet, without application to the court, execution against the person may be issued, if the case really be one wherein under said section “arrest might liaVe been made,” with regard to which fact,-the party issuing the execution acts at his peril. For, if the case be not such a one, he thus renders himself liable for false imprisonment, and motion also may be made to set aside and vacate the execution against which he must, to the satisfaction of the court, by affidavits, establish the proper grounds to justify the imprisonment.

The court of appeals, in Corwin agt. Freeland, (2 Seld. 560), held with Cheney agt. Garbutt, and left the question alluded to by Harris, Justice, in the last two cases, still vexata questio. Alden agt. Sarson ( 4 Abb. 102 ) decides contrary to the opinion of Judge Harris, that the execution cannot be issued without the order of the court, when the record does not approve of it, nor has order of arrest been granted.

For practice prior to the Code respecting ca. sa., vide Graham's Practice, page 411.

I have examined the question submitted. The Code 1ms made no provision for applying to the court or judge for leave to issue a ca. sa. If the right exists in this case, it is without reference to any order, and the plaintiff may exercise the right. He will act, however, at his peril. ■