Cropsey v. Mc.Kinney.

believing McCullom to be dead, and after an absence of McCullom for five successive years and without her having known during that time that McCullom was living.

Bruce and Mary B. McKinney were both sworn as witnesses before the referee, and both were objected to as not competent. I suppose neither of them was a competent witness in the first action, to which they are both parties; but their testimony was of no importance in that action. I do not see why they were not both competent witnesses in the other two actions, to which they are not parties. Certainly any resulting interests under the assignments would not render them incompetent.

Mary B. McKinney swears that she separated from McCullom in September, 1835; that the last time she ever saw him was in May, 1837; that when she married McKinney, July 22, 1842, she had not heard and did not know of McCullom's being alive since she saw him in May, 1837; that she supposed him to be dead; that he was intemperate and had fallen off of the docks previous to May, 1837; that in June, 1837, she read an account in the newspapers of a body that had been taken out of the water, that had been in the water for some time; and that from the description she supposed it to be the body of McCullom, and went to see it in Montgomery street, but when she got there found it had been buried the day before; that from the description which she received of the clothes on the body, they corresponded with the clothes McCullom wore when she last saw him; that she supposed the body was the body of McCullom. Several witnesses corroborate this testimony of Mary B. McKinney. There is a good deal of testimony on the other side, to show that McCullom was seen in New York from time to time between May, 1837, and July 22, 1842; but it is not satisfactorily proved, I think, that Mary B. McKinney saw him or knew or was informed that he was alive between those dates. If Mary B. McKinney knew or supposed that McCullom was alive when she married McKinney, she not only committed a great crime when she mar

Cropsey v. McKinney.

ried McKinney, but has added to that crime another great one in these suits. A presumption that she has committed these crimes should not be indulged in on slight grounds.

My conclusion on the whole case is, that as between the assignees of Bruce and the assignees of Mary B. McKinney, his assignees are entitled to the property and proceeds of the property taken by Banks and Pomroy under her alleged assignment; and there must be a reference to Mr. Patterson, the same referee who took the testimony in these cases, to ascertain the value of such property and to take an account of their receipts and payments on account of the same, under the stipulation of the parties.

As it appears that McCullom was in fact alive when the marriage with McKinney was contracted, and did not die until June, 1851, and as it appears that he had a child by Mary B. McKinney which is supposed to be now living, and as a question might be raised whether, notwithstanding the second marriage and the deed of separation between McCullom and Mary B. McKinney, his personal representatives or child may not have some right or interest in or to the property, or the proceeds of the property in question, the assignees of Bruce McKinney must take the property and its proceeds subject to such claim or interest, if any there be.

Neither the representatives of McCullom nor his child are parties to these actions, and I have not examined any such question.

[NEW YORK SPECIAL TERM, October 21, 1859. Sutherland, Justice.]

MERRITT VS. CARPENTER & REYNOLDS.

In an action brought to recover the possession of real property, and damages for the unlawful withholding of the same, the defendant may be arrested and held to bail. Consequently, if the plaintiff fails in the action, and there is a judgment against him for the costs, he becomes himself the judgment debtor, and, by virtue of 288 of the code, is liable to arrest and imprisonment upon an execution issued in satisfaction of the judgment.

MOTI

OTION, by the defendants, for a new trial, on exceptions taken at the circuit.

J. W. Tompkins, for the defendants. I. The complaint in the suit, in which the execution was issued, alleges that the defendant, on 31st August, 1851, entered into and upon said premises and every part thereof, and ever since continued, and now is, in possession thereof, in violation of the rights of the plaintiff, and unlawfully withheld possession of the lands from the plaintiff, and still withholds such possession, and demands judgment that the defendant be adjudged to surrender possession of the lands to the plaintiff, and also to pay the plaintiff $500 damages for said unlawful withholding of the same. These two causes of action were allowed to be united, by sub. 5 of § 167 of code, "Claims to recover real property, with or without damages for the withholding thereof, and the rents and profits of the same." These causes of action are in tort, for either of which, before the code, the plaintiff could have been imprisoned for the defendants' costs, on a judgment in his favor, and the code has not altered the law. Section 179 of the code provides that the defendant may be arrested in five cases. The first case is the one under which this execution issued. "In an action for the recovery of damages &c. for injuring or for wrongfully taking, detaining or converting property." Then § 464 of the code provides, "The word property, as used in this act, includes property real and personal." Thus making the above quotation of sub. 1 of the 179th section of the code to read, "in an action for the recov

Merritt v. Carpenter.

ery of damages for injuring or for wrongfully taking or detaining or converting real property." The words in the complaint in the suit in which execution issued, may not be the precise words of that subdivision, but they are equivalent and tantamount thereto, mean the same, and express the same cause of action for which the arrest therein provided is allowed. By § 288 of the code, where the defendant could be arrested under § 179, an execution against the person of the judgment debtor may be issued. (Kloppenberg v. Neefus, 4 Sandf. 655. Corwin v. Freeland, 6 How. Pr. Rep. 245.) The rights of the parties to imprison on execution are reciprocal. Therefore the execution was properly issued, and the judge's refusal to nonsuit and charge were erroneous. If a plaintiff unites tort and contract in the same action, and fails, the defendant can imprison the plaintiff for the costs. (Miller v. Scherder, 2 Comst. 268.)

II. In any event, the defendant Reynolds, as deputy sheriff, was protected by the execution in question, which was regular on its face, without showing any judgment; and the decision of the judge, that said judgment and executions did not authorize the defendants, or either of them, to arrest Sylvanus Merrit, was clearly erroneous, and the judgment appealed from should be reversed. (McGuinty v. Herrick, 5 Wend. 240. Lewis v. Palmer, 6 id. 367, 369. Savacool v. Boughton, 5 id 170. Hutchinson v. Brand, 5 Seld. 208.) Facts to authorize an arrest need not be stated in the execution. It justifies the sheriff without it.

III. The charge of the judge, on the above two points, to the jury, was therefore erroneous; and that part of his charge, in which he says "That` the jury, in determining the damages to be awarded to the plaintiff, might take into account the payment by him to the defendants of the amount of that judgment and execution," was also erroneous. The judgment was paid by Merritt by the arrest and satisfaction. It was a just debt; he was bound to pay; and all the damages he could recover was for the loss of time and detention, about 1 hours, under the execution.

こ

Merritt v. Carpenter.

IV. The damages ($500) found by the jury were not warranted by the evidence. They were grossly vindictive and excessive, and evince in the jury gross ignorance or partiality. The defendants acted honestly and without malice, and vindictive damages are not in such cases to be allowed.

S. E. Lyon, for the plaintiff. I. There was no error in the refusal of the justice, upon the trial, to nonsuit the plaintiff. The judgment and executions in the ejectment suit were no justification to the defendants for arresting the plaintiff. (1.) An execution against the person of a plaintiff, for costs, cannot issue in an action to recover the possession of real property, and for mesne profits. Section 28 of the code provides: "If the action be one in which the defendant might have been arrested, as provided in sections 179 and 181, an execution against the person of the judgment debtor may be issued to any county within the jurisdiction of the court, after the return of an execution against his property unsatisfied in whole or in part." The first subdivision of section 179 (under which the right to arrest is claimed in this action) is as follows: "1. In an action for the recovery of damages, on a cause of action not arising out of contract, when the defendant is not a resident of the state, or is about to remove therefrom, or when the action is for an injury to person or character, or for injuring, or for wrongfully taking, detaining or converting property." This last clause has reference solely to the old action of trover, for taking, detaining or converting personal property. It does not even include actions to recover the possession of personal property, as is manifest from subdivisions three and four of the same section, which require, in such actions, proof of fraud, in the concealment or disposition of the property, before arrest may be made. An action to recover possession of real property is not an action for wrongfully taking or converting property, and the incidental demand of the rents and profits is based not upon the retention of the property, but the withholding the possession. Real property