tained under the same rules which formerly prevailed in courts of chancery. The code has changed the form of the suit, but has not affected the rights of the parties, or impaired the powers of courts having equity jurisdiction from administering proper relief in a case showing a state of facts which formerly were sufficient to authorize a court of chancery to act. Bartlett v. Drew, 60 Barb. (N. Y.) 648, affirmed, 57 N. Y. 587. The case of Graham v. Railway Co., IO Wis. 459, would seem to support the proposition that the proceeding supplementary to execution provided by the statute of that state superseded the remedy by creditors' bills, and was exclusive. That case, however, has not been followed by the courts of that state. The decision of the case in which the rule there laid down was invoked was put upon other grounds, and the remedy by creditors' bills has been restored long since in that jurisdiction by legislative enactment. Seymour v. Briggs, 11 Wis. 196; Gates v. Boomer, 17 Wis. 455. The cases cited by the respondent from the California reports do not sustain his contention. In that state creditors' bills have always been maintainable. Baker v. Bartol, 6 Cal. 483; Marshall v. Bushanan, 35 Cal. 264. Such is also the rule in Colorado. Allen v. Tritch, 5 Colo. 222; Frazer v. Smelting Co., 5 Fed. Rep. 163. And also in Kansas. Ludes v. Hood, 29 Kans. 49.

The complaint in the case at bar contains all the allegations necessary under the code, or which were formerly required by the courts having equity jurisdiction in creditors' suits brought to set aside fraudulent conveyances as obstructions to an execution at law, and is sufficient. The demurrer, therefore, must be overruled, and the pro forma judgment of the District Court reversed, with leave to the defendants to answer within thirty days, on payment of costs and disbursements. All the justices concurring.

SECTION 12. EXECUTION AGAINST THE PERSON

FORSYTHE v. WASHTENAW

CIRCUIT JUDGE, 1914

180 Mich. 633

BROOKE, J.: Relator prays for the issuance of a writ of mandamus against respondent requiring him to recall and quash a writ of capias ad satisfaciendum. The antecedent facts are briefly as follows: One Della Anthony brought suit against relator and another in an action of trespass upon the case. The suit was commenced by a summons, and the declaration charged relator with fraud. Under a plea of the general issue, the parties went to trial, and a judgment was rendered against relator on the 27th day of October, 1913. On the 24th day of November, 1913, an execution was issued upon said judgment, made returnable January 15, 1914. Under date of Janu

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ary 10, 1914, the sheriff returned the execution nulla bona. On January 12, 1914, a writ of capias ad satisfaciendum was issued, although the record is silent as to the application therefor. The relator was arrested upon said writ and on January 13, 1914, gave a bond in the penal sum of $7,500 to the jail limits of the county of Washtenaw. On January 19th relator made a motion for an order recalling and quashing said writ of capias ad satisfaciendum.74

It is the claim of relator that plaintiff, Della Anthony, having commenced her action by summons instead of by a capias ad respondendum, as she might have done under section 9996, 3 Comp. Laws, is now precluded from having recourse to a writ of capias. ad satisfaciendum, although she would have been entitled to the latter writ had she used the more rigorous process as commencement of suit. The precise question seems never to have been raised in this court. 3 Comp. Laws, section 10301, provides: "Such execution may be either (1) Against the goods and chattels, lands and tenements of the party against whom such judgment was recovered; or (2) against the body of such party, in the cases authorized by law." The statutes are silent as to the cases in which a body execution may issue in this State. It is therefore necessary to determine the question from an examination of the precedents arising under the common law.

In an early case, Fuller v. Bowker, 11 Mich. 204, Justice Christiancy used the following language at page 210: "We understand the common-law rule to have been that a capias ad satisfaciendum could be issued in those cases, and those [cases] only, in which the suit might have been commenced by capias ad respondendum, or, in other words, when the latter was the immediate process upon the original writ. The only exception to this seems to have been when the defendant was an attorney or officer of the court; in such case he might be taken in execution, though sued by bill. 2 Arch. Pr. 276. Originally the capias ad satisfaciendum lay at common law only in trespass vi et armis. But as statutes were subsequently passed, giving the capias ad respondendum as the mesne process in other cases, the capias ad satisfaciendum was held to follow, as a common-law incident. But in no case was the latter allowed without the former unless directly authorized by statute. I Sellon's Pr. 513; Comyn's Dig. Execution, ch. 9; Tomlin's Law Dict. title 'Capias'; I Arch. Pr. 276." 75

"Part of the opinion is omitted.

"The writ of capias ad satisfaciendum commands the sheriff to take the body of the defendant, and him safely keep, so that he may have his body in court, to satisfy the plaintiff the amount of his judgment. At common law, the king when plaintiff could have execution against the defendant's body, land and goods, but a subject could have execution against the body of the defendant in trespass vi et armis only. To secure the appearance of defendants the writ of capias ad respondendum was given by the statute of 52 Hen. III, ch. 23 (Marlebridge) and of 13 Edw. I, ch. II (Westminster II), in actions of account, by the statute of 25 Edw. III, ch. 17, in debt and detinue, and by the statute of 19 Hen. VII, ch. 9, in actions on the case. The capias ad satisfaciendum is not expressly given by statute but the

In 1 Sellon's Pr., p. 513, cited by Judge Christiancy, it is said: "A capias ad satisfaciendum, by the common law, lay only in trespass vi et armis, being a direct and wilful wrong, and wherein the capias ad respondendum was the immediate process upon the original writ. But several statutes having given the process of capias ad respondendum, as the mesne process upon the original writ in other personal actions, than those committed vi et armis, the capias ad satisfaciendum has become an executory process in them also, it being held as a rule that, where a capias lies in process before judgment, it will lie in execution upon the judgment itself." In I Burrill's Pr., p. 308, we find the following: "It may be considered a general rule, that a capias ad satisfaciendum will lie in all cases where a (bailable) capias ad respondendum might have been used as the process to bring the defendant before the court." Citing I Arch. Pr. 303. In 1 Tomlin's Law Dict., at p. 287, after describing the writ, the writer says: "Properly speaking, this writ can not be sued out against any but such as were liable to be taken upon the capias mentioned in the preceding article." Citing 3 Rep. 12; M. O. 767. See, also, 2 Tidd's Pr. (2d Am. ed.), p. 1025; Graham's New courts have held that wherever a capias lies in process before judgment it will lie in execution upon the judgment itself. 3 Salk. 286; Y. B. 43 Edw. III 1; Y. B. 49 Edw. III 2; Y. B. 2 Hen. IV 6; Y. B. 7 Hen. VI 45b; Co. Litt. 290b; Harbet's Case, 3 Coke 12 (1584); Cassidy v. Stewart, 9 D. P. C. 365, 5 Jur. 25, 2 Scott (N. R.) 432 (1841); Kintzell v. Olsen (N. J.), 73 Atl. 962 (1909).

The evils incident to imprisonment for debt have led, both in England and the United States, to the passage of statutes that have greatly diminished the number of cases in which the defendant can be arrested and imprisoned in civil actions to enforce payment of money demands.

In England the Act of 32 and 33 Vict., ch. 62 (Debtor's Act of 1869), provides that no person shall be arrested or imprisoned for making default in the payment of a sum of money except defaults in the payment of (1) penalties; (2) sums recovered summarily before a justice of the peace; (3) sums ordered to be paid by trustees or fiduciaries; (4) costs ordered to be paid by a solicitor for misconduct; (5) income ordered to be paid by a bankruptcy court; (6) sums ordered to be paid in instalments by the court. In re Edgcome, L. R. (1902) 2 K. B. 403. Rules of Supreme Court, Order XLII, rule 3. But no person may be imprisoned in any excepted case for more than one year. Church's Trustee v. Hibbard, L. R. (1902) 2 Ch. Div. 784. Subject to prescribed rules, the court may commit to prison for a term not exceeding six weeks, or until payment of the sum due, any person who makes default in the payment of a debt or instalment of a debt due from him in pursuance of any order or judgment of a competent court. But such jurisdiction shall only be exercised where it is proved to the satisfaction of the court that the person making default either has or has had since the date of the order or judgment the means to pay the sum in respect of which he has made default, and has refused or neglected to pay the same. Esdaile v. l'isser, L. R. (1880) 13 Ch. Div. 421, 41 L. T. 745, 28 W. R. 281; In re Wray, L. R. (1887) 36 Ch. Div. 138 (1887); Preston v. Etherington, L. R. (1887) 37 Ch. Div. 104; Harris v. Slater, L. R. (1888) 21 Q. B. Div. 359, 57 L. J. Q. B. 539, 37 W. R. 56; Stonor v. Fowle, L. R. (1887) 13 App. Cas. 20. The state statutes restricting execution against the person of the defendant to specified causes of action vary greatly in their terms. Generally, such proceedings are allowed in actions of tort or where the defendant has been guilty of fraud or professional misconduct. See Freeman on Executions (3d ed.), § 451; U. S. Comp. Stat. (1913), § 1636; N. Y. Code Civ. Proc. §§ 487, 549, 550; N. J. Practice Act of 1903, § 189; Mass. Rev. L. (1902), ch. 168; Pa. Act of July 12, 1842, P. L. 339, § 1, P. & L. Dig. (2d ed.) 5795.

FORSYTHE V. WASHTENAW

791

York Pr., p. 410. In 4 Comyn's Digest, at page 228, we find the following: "So execution may be by capias ad satisfaciendum against the body of the defendant in all cases where a capias ad respondendum lies in process."

Our Constitution, article 2, section 20, provides: "No person shall be imprisoned for debt arising out of or founded on a contract, express or implied, except in cases of fraud or breach of trust, or of moneys collected by public officers or in any professional employment. No person shall be imprisoned for a military fine in time of peace."

It is obvious that the plaintiff in the principal case might have proceeded against relator under the Constitution as well as under the statute cited, supra, by causing to issue a writ of capias ad respondendum as commencement of suit. Should she now be deprived of her right to the writ of capias ad satisfaciendum because of having chosen the less drastic writ for her mesne process? We are of the opinion that she should not.

In the case of Hunt v. Burdick, 42 Vt. 610, it is said: "There is nothing in our statutes or practice that requires the establishment of a rule that the plaintiff in an action of tort shall be deprived of the right, which the law gives him, of taking an execution against the body of the judgment debtor, because he omits to issue his original writ against the body. What operates so manifestly as matter of ease and favor to the defendant, ought not to be the ground of forfeiture of the rights of the plaintiff."

The case of Lapham v. Oakland Circuit Judge, 170 Mich. 564, cited on behalf of respondent as authority, is not controlling for the reason that in that case the question considered was only whether the body execution had been seasonably issued. The basic right of the plaintiff to the writ was not questioned.

The writ is denied.76

76Where the right to arrest is determined by the nature of the cause of action, an execution against the person may issue although there has been no previous arrest. Eames v. Stevens, 26 N. H. 117 (1852); State v. Foote, 83 N. Car. 102 (1880); Haskell v. Jewell, 59 Vt. 91, 7 Atl. 545 (1886); Roeber v. Dawson, 22 Abb. N. C. (N. Y.) 73, 3 N. Y. S. 122, 21 N. Y. St. 160 (1888); Carrigan v. Washburn, 18 N. Y. Civ. Pro. 77, 7 N. Y. S. 262, 25 N. Y. St. 931 (1889); Kalbfus v. Rundell, 134 Pa. 102, 19 Atl. 492 (1890); Sawyer v. Nelson, 44 Ill. App. 184 (1891); Dungan v. Read, 167 Pa. St. 393, 31 Atl. 639 (1895); Sherman v. Grinnell, 159 N. Y. 50, 53 Ñ. E. 674 (1899); Martin v. Hutto, 82 S. Car. 432, 64 S. E. 416 (1908); Kintzel v. Olsen (N. J.), 73 Atl. 962 (1909); Michael v. Leach, 166 N. Car. 223, 81 S. E. 760 (1914). But where the grounds of arrest are extrinsic to the cause of action, an execution against the person can not issue where no order of arrest has been previously obtained. Smith v. Knapp, 30 N. Y. 581 (1864); Elwood v. Gardner, 45 N. Y. 349, 10 Abb. Prac. (N. S.) 238 (1871); Stern v. Moss, 67 How. Pr. (N. Y.) 199, 6 Civ. Pro. R. 184 (1884); Chapin v. Foster, 101 N. Y. 1, 3 N. E. 786 (1885); Griffith v. Hubbard, 9 S. Dak. 15, 67 N. W. 850 (1896); Fenton v. Duckworth, 131 App. Div. 291, 115 N. Y. S. 686 (1909).

OSMAN v. CROWLEY

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, 1905

101 App. Div. (N. Y.) 597

INGRAHAM, J.: The plaintiff, an infant, eight years of age, brought this action to recover for the injuries sustained by being run over by a hansom cab, the property of the defendant. He alleged in the complaint that "said defendant and servant were negligent, reckless and careless and unskillful in the management and operation of said hansom vehicle and the management and control of said horse or horses and in the manner of driving the same and in consequence thereof and without fault on the part of the plaintiff he was knocked violently to the ground by said horse and vehicle and run over"; that "solely by reason of the defendant's negligence as aforesaid plaintiff was run over," and that by reason thereof the plaintiff sustained damage. An answer was interposed which was substantially a denial of the allegations of the complaint. The action was tried and a verdict rendered for the plaintiff for the sum of $3,000, upon which judgment was entered. Execution against the property of the defendant having been returned unsatisfied, an execution against the person was issued, whereupon he moved to set aside this execution on the ground that the same "is irregular and void for the reason that no order of arrest was or could have been issued in this action against the defendant." This motion was denied and the defendant appeals.

.

The right to issue an execution depends upon the Code of Civil Procedure. Section 1487 provides that an execution against the person of the judgment debtor may be issued thereupon (Subd. 1) where the plaintiff's right to arrest the defendant depends upon the nature of the action, and (Subd. 2) in any other case where an order of arrest has been granted and executed in the action. Section 549 of the Code of Civil Procedure provides that the defendant may be arrested in an action brought to recover damages for a personal injury. Section 3343 provides that "In construing this act 9. A 'personal injury' includes libel, slander, criminal conversation, seduction and malicious prosecution; also an assault, battery, false imprisonment, or other actionable injury to the person either of the plaintiff or of another." Thus in an action to recover damages for actionable injury to the person of the plaintiff, the defendant may be arrested, and a judgment in such an action may be enforced by execution against the person, as the plaintiff's right to arrest the defendant depends upon the nature of the action. This construction was given to these provisions of the Code of Civil Procedure by the General Term of the New York Superior Court in Ritterman v. Ropes, 52 N. Y. Super. Ct. 237.

The defendant claims that the right to arrest in an action to recover for personal injuries depends, not upon the nature of the