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Grosvenor agt. Hunt.

in the case,

“ These parties intended to blot out and end the suit at law, from its commencement before the justice to its termination in the common pleas, by the substituted arrangement to arbitrate;" and the judgment below was reversed. It is true, the court in that case place much stress upon the express agreement, that proceedings in the suit should be ended. But it is in distinguishing the case from a former one (Miller agt. Van Auken, 1 Wend. 516) similar to it, with the exception that in the latter there was, beyond a submission of the cause, a clause in the bonds, that the appeal to the court of common pleas should be, and was thereby discontinued, without saying anything about a discontinuance of the proceedings before the justice. In that case it was held the justice's judgment remained in force. I understand the decisions in both cases to be controlled by the intention of the parties, as manifested by their agreement. In the former it was palpable they intended all the legal proceedings should be at an end; in the latter, by expressing that the appeal was to be terminated, it might be inferred they intended the proceedings before the justice should be suspended merely, and that the judgment might be enforced if no award should be made.

In the present case it is as clear, from the submission, that it was intended the proceedings in the action, including the judgment as well as the appeal, should be ended, as if the parties had said so in express terms. The legal proceedings from the first were to be blotted out. Another tribunal was selected for the entire controversy. The doctrine that a submission works a discontinuance of an action, does not depend upon an express agreement that the action shall cease: such an agree.. ment is implied in all cases, from the selection of another mode of adjustment and settlement of the litigation.

The bonds of submission in this case express that the action is submitted. Under the general doctrine referred to, the action is discontinued. The action embraces all the legal proceedings. An appeal is but a step taken in the action. (Brockway agt. Jewett, 16 Barb. 593, and the cases there cited.)

There is an apparent injustice in allowing the defendant thus

Grosvenor agt. Hunt.

to avoid the judgment against him; but the right of revocation was an incident to the submission, which it belonged to the parties to consider on entering into the submission. The plaintiff might have revoked, and, if the judgment was not ended by the submission, have thereby deprived the defendant of his right to appeal, after the time to appeal had expired, and gone on and enforced his judgment. That apparently would have been gross injustice. In both cases, however, the injustice is only apparent; each party has an ample remedy on his bond, and by occupying his original position in respect to the cause of action.

The question considered having been discussed on the argument, and subsequently examined by me, I have thought proper to express my views in relation to it, although I have come to the conclusion upon another point, that the motion must be granted.

The sheriff cannot avail himself of the submission to arbitration, as an answer to proceedings to compel a return of the execution. The execution is not, by reason of the submission, void; it is only voidable; and the right to avoid it is personal to the defendant. His remedy is by motion to set aside, or for a perpetual stay of proceedings on the execution. Upon such a motion, the plaintiff can present such facts as he thinks proper and pertinent in resisting it; he was not called upon in this proceeding to anticipate, and be prepared to meet such an objection. In the present case, it is not suggested that any answer exists which has not been made; but the plaintiff is entitled to the application of the general rule of practice, which sends a party in such cases to an affirmative application. (Ontario Bank agt. Hallett, 8 Cow. 192; Orangé County Bank agt. Dubois, 21 Wend. 351.)

The motion for an attachment is granted, with a stay of proceedings for ten days, to enable the defendant to prepare papers and give notice of a motion for relief, and obtain a further stay of proceedings with a view to a motion.

Lane agt. Losee and others.


MALTBy G. LANE agt. Simeon Loses and others.

The last paragraph of subdivision 5, section 244 of the Code, says, “When the

defendant admits part of the plaintiff's claim to be just, the court, on motion, may order such defendant to satisfy that part of the claim, and may enforce

the order as it enforces a provisional remedy." Now, the question is, does this provision apply where the defendant admits part

of the plaintiff's demand, arising upon an ordinary civil contract—as upon

a promissory note. Held, not. The provision in question cannot affect any demand, or any part of

a demand arising upon contract, where such contract is within the meaning of the first section of the act of 1931, abolishing imprisonment for debt. Otherwise imprisonment for debt is reinstated, and the act of 1531, in part at at least, repealed by indirect implication.

At Chambers, New-York, September, 1855.

This was an action against the makers of promissory notes, amounting to $1,667.84.

The defendants, without denying the demands, claim a setoff for money laid out and expended, and work and labor, amounting to $150, tacitly admitting a balance due to plaintiff of $1,517.81.

The plaintiff now moves, under the last paragraph of subdivision 5, section 244, of the Code, that the defendants may be ordered to satisfy that part of the demand thus tacitly admitted, and that the court enforce the order as it enforces a provisional remedy: that is, by commitment, as for contempt.

Niles & Bagley, for plaintiff.
I. T. WILLIAMS, for defendants.

CLERKE, Justice. It will be seen, that the only relation subsisting between the parties in this action is the ordinary one of debtor and creditor. Does the section in question apply to this relation? Were we permitted to regard the paragraph isolated, and detached from the Code, and the statutes remain

Lane agt. Losee and others.

It says,

ing in force, the language in which it is expressed may seem to warrant the construction which the plaintiff maintains.

“When the defendant admits part of the plaintiff's claim to be just, the court, on motion, may order such defendant to satisfy that part of the claim, and may enforce the order, as it enforces a provisional remedy:" that is, it may commit the defendant as for a contempt, if he should not pay the portion of the demand which he admits to be just. But, however apparently plain this language may be, when the paragraph is considered alone and detached, there are, I think, insuperable objections to the construction which the plaintiff has urged upon the court.

1st. In the first place, such a construction would be most manifestly at variance with the spirit and policy of our legislation for nearly a quarter of a century, and with the uninterrupted current of public opinion during that period.

It would subject a party to imprisonment for a mere debt, in direct contravention of the act passed on the 26th of April, 1831, expressly for the purpose of exempting all persons from imprisonment in any suit or proceeding instituted for the recovery of money due upon any judgment or decree, founded upon contract, express or implied, or for the recovery of any damages for the non-performance of any contract, except actions on promises to marry, and other cases not within the range of ordinary contracts—such as actions for fines and penalties, or for moneys collected by any public officer, or for any misconduct or neglect in office, or in any professional employment.

If this construction, however, can be sustained, imprisonment for debt is reinstated in our statute book, notwithstanding this act, and in spite of public opinion, and the whole tenor of legislation on this subject.

20. This construction would be an indirect repeal, in part at least, of the act of 1831, abolishing imprisonment for debt. But can a statute, particularly a statute of this benignant character, in favor of human liberty, and abrogating a barbarian usage, be repealed in this way.

An old statute, indeed. gives place to a new one; but this

Lane agt. Losee and others.

is to be understood only when the latter statute is couched in negative terms, or when its matter is so clearly repugnant that it necessarily implies a negative.

The invariable rule of construction in respect to the repealing of statutes by implication is, that the earliest act remains in force, unless the two are manifestly inconsistent with, and repugnant to each other, or unless by the latter act some express notice is taken of the former, plainly indicating an intention to abrogate it.

As laws are presumed to be passed with deliberation, and full knowledge of all existing ones on the same subject, it is reasonable to conclude that the legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. Hence a repeal by implication is not favored. (Bowen agt. Lease, 5 Hill, 225.)

3d. The construction contended for presents an anomaly, which neither law nor reason favors. It will be remembered, that in the case before us, the admission by the defendant of part of the claim is not express, but implied, precisely like an admission of the whole demand, where a defendant allows judgment to go against him by default. This, in fact, is a default against the defendant for a part instead of the whole. Now it will not be pretended, if he put in no answer, and allowed judgment to be entered against him by default on the whole demand, that the remedy now sought for could be applied; it would be too palpable an attempt to override the act of 1831. And yet it is gravely contended that this very thing can be done when only a part of the demand is admitted ; a demand arising upon the most ordinary and familiar of all contracts—promissory notes. This is an absurdity, a contradiction, which the legislature could not have intended to place upon the statute book. To allow imprisonment for a fragment of a debt while they had abolished it as a remedy for the whole, is an anomaly which it cannot be supposed any legislative body could have coritemplated.

For these reasons, therefore, I cannot believe that the pro

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