Jones v. Buzzard, 2 Ark. 415 (1840)

Isaac N. Jones, and others, against Buzzard and Herndon.

Trimble, for plaintiff in error:

Pike & Cocke, Contra:

Lacy, Judge,

delivered the opinion of the court:

The record in this case presents but a single question for our deci­sion, which is, did the court below err in permitting the defendants to , read to the jury the writ of attachment as evidence in the cause. It is insisted on behalf of the plaintiff, that the court erred in refusing to give certain instructions asked for by him, and also in granting others, at the instance of the defendant; but before we are at liberty to ex­amine the correctness cr incorrectness of these instructions, it is neces­sary to ascertain if any such instructions were asked for, refused, or given,, and excepted to upon the trial, and made a part of the record. We have found this inquiry every way easy of solution. It is perfectly clear that the record wholly fails to show any one of these facts. It is true that the Clerk has copied into the transcript certain instructions, and has marked them filed, and has written upon the margin opposite to each instruction, the word “ given” or “ refused.” These entries are mere clerical memoranda made without any order or authority of the court, and consequently they catínot be regarded as forming any part of the record in the case.

It is said that the instructions properly belong to the record, because the plaintiff in bis motion for a new trial refers to them, and that the court below in overruling his motion, put them on file upon the rolls. The position is wholly untenable. The plaintiff in error moved the court for a new trial; first, because the verdict was contrary to law; and secondly, because the court erred in giving and refusing certain instructions to the jury. The motion for a new trial was overruled, and the party making it, did not except to the opinion of the court, in deciding the points. It is impossible for this court judicially to know opon what grounds the motion for a new trial was refused. The pre­sumption is in favor of the verdict and judgment below, and they must stand until they are overthrown by other affirmative proof. In the pre­sent instance there was no exception filed to the opinion of the court overruling the plaintiffs’ motion for a new trial, and that circumstance alone conclusively proves that there was no error in the opinion given, or if there was, the defendant expressly waived it, by not excepting at the time. For aught that appears from the record, the court below refused to grant a new trial upon the ground that no such instructions as were referred to in the motion, were ever asked or insisted upon, or reserved at the trial. The instructions, therefore, may or may not have been given or refused upon the trial, but as they form no part of the record before this court, we cannot regard them in any decision we may make affecting the merits of the controversy now pending. This point has been expressly ruled in Gray vs. Nations, 1 Ark. 557, and Lenox, vs. Pike and wife, and Smith and wife, ante.

The record in this case presents another preliminary question, which is, where a party excepts during the progress of a trial, 'and after-­wards there is a verdict and judgment entered up against him, and he thereupon moves for a new trial, whether that is not a waiver of his exceptions? As this point is one of much interest and magnitude in practice, we do not think it advisable to express any opinion in regard to in the case now under consideration, especially as we have not a .full bench, and the same result follows in the decision we are about to make.

The only question then to be decided is, was the writ of attach­ment properly or improperly admitted as evidence in the case ? In order to arrive at a just conclusion upon this point, it is 'necessary to consider the character and form of the action, and what the plead­ings put properly at issue.

An action on the case, properly so called, is founded upon the mere justice and conscience of the plaintiff’s right to recover, and is in the nature and effect of a bill in equity. There­fore a recovery, release, or satisfaction need not be pleaded, but may be given in evidence under the general issue. Whatever will in equity, or in conscience, preclude the plaintiff ?s right of recove­ry may be given in evidence in an action on the case. And the-­reason according to Chitty is that “ the plaintiff must recover upon the conscience of his case, and upon that only.” In action therefore upon the case, under the plea of not guilty, the defendant can not only put the plaintiff upon proof of the whole charge contained in the declaration, but he may give in evidence any justification or ex­cuse of it, which’will defeat the plaintiff’s right of action. 1 Ch. Pl. 487; Bird vs. Randall, 3 Burr. 1365; Barber vs. Dixon, 1 Wils. 45; 2 Saund. 155, a. u. So in trover, under the general issue, the de­fendant may show any ground of defence, which proves that the conver­sion was lawful, or that trover was not maintainable. 2 Saund. Pl. and Ev. 872. '

The affidavit upon which the writ issued, and all other proceedings prior to the issuing of the writ, are made no part of the record by bill of exceptions, or otherwise. This being the case, the plaintiffs have failed to show to this court either that the writ was illegally issued, or irregularly served. We are bound to presume in favor of the deci­sion of the court below, until the contrary is made affirmatively to ap­pear. Again the second and third counts do not allege that the writ of-attachment was either improvidently or illegally issued, and there­fore under these counts, the illegality of the proceedings of the Justice of the Peace cannot be questioned or put in issue.

The liability of the defendants, if it exists at all, under the second and third counts, arises from their laches or negligence, in keeping the property levied upon. If the writ of attachment is competent evi­dence in the case for any purpose whatsoever, of course the defend­ants below had a right to read it to the jury. The plaintiffs recited and set out in the second count of their declaration, the affidavit upon which the attachment issued, the writ itself, and also the levy and re­turn of the Sheriff. Having referred to these papers, or made these recitals, was it not lawful for the defendants to introduce the writ of attachment as evidence upon the trial?

The plaintiff having voluntarily, by their own act, made the writ a part of their declaration, they have certainly no right to object to its going in evidence to the jury. The defendants, by its introduction,, only prove what the plaintiffs had alleged. If the Sheriff, as the plaintifis have declared, acted under authority, and by virtue of the of the writ, at the instigation and direction of the defendants, he sure­ly acted under color of the-law, and consequently, the writ furnished a good excuse, if not a complete justification to the defendants. The writ itself recited the affidavit upon which it was founded, and was'is­sued by an acting Justice of the Peace; and this being neither con­troverted nor denied, but expressly admitted and insisted on in the second count of the declaration, the presumption obtains that it was properly issued and regularly executed, and consequently legitimate proof in the case. The recital of the affidavit in the writ may be regarded as part and parce! of the writ; and as that recital is not in­consistent with the provisions of the statute, authorizing such a pro­ceeding, the legal conclusion is irresistible that the defendants in er­ror laid a proper foundation for the attachment, aud that the Justice of the Peace acted correctly in issuing the writ, and directing it to the Sheriff.

This brings us to the consideration of the only remaining question, which is, had the Justice of the Peace lawful power and authority to issue the writ, returnable to the Circuit Court, or were all his acts and proceedings therein illegal and extra-judicial. This latter proposition has been argued with much earnestness, and very considerable abili­ty and learning by the plaintiffs’ counsel; which has induced us to give to this branch of the subject the most mature reflection and in­vestigation. The result of our enquiries will now be stated. There being no proof in the record that either the Sheriff or the defendants were guilty of any laches or negligence in keeping the property after the levy, or while it was in custody of the law, their liability, if it exists at all, must depend wholly and exclusively upon the illegality of the proceedings before the Justice of the Peace. Under the count in trover, they may be so charged, provided the facts show a tortious taking and conversion of the property; In form the action of trover is a fiction; but in substance it is a remedy to recover the value of a per­sonal chattel wrongfully converted by the defendant. The injury líes in the conversion, and that constitutes the gist of the action. In order to support the action two things are necessary for the plaintiff to prove: First, property in himself, either general or special; and second, a wrongful conversion by the defendant. The conversion may be proved by a wrongful taking, or by an illegal assumption of ownership, or by an unwarrantable detention. In the present in­stance, if the plaintiffs had showed a tortious taking of the property by an unlawful levy, then they had established a conversion, and the action would lie. I Ch. Pl. 148, 149, 153; 3 Black. Com., 161, 162, 163; Rackham vs. Jessup, 3 Wils. 332; Cooper vs. Chitty, 1 Burr. 20; 2 Saund. R. 47 a, n. 1.

The proceedings were commenced and prosecuted under an act of the General Assembly of the Territory of Arkansas, approved Octo­ber, 22, 1823. The 29th section of the act declares that “ in all cases where any person has any debt or demand against any other person in this Territory, and he shall have good cause to believe that said debtor has removed or is about to remove himself or effects out of this Territory, it shall be lawful for such creditor, in all cases where the demand shall exceed the sum of fifty dollars, to apply to some Justice of the Peace for the county where the debtor resides, and to file his affidavit in writing, stating that the person (naming him) is in­debted to him in a sum exceeding fifty dollars, and that he has good cause to believe that the said defendant is not a resident of or residing in this Territory, or that he is about to remove himself and effects without this Territory, (as the case may be,) so that the ordinary pro­cess of law cannot be served on him, and he, the said plaintiff is there­by in danger of losing his said debt; whereupon, it shall be the duty of said Justice to issue a writ of attachment, returnable to the next Circuit Court for the county in which he resides, commanding the Sheriff or Constable of his township to attach the said defendant, by all and singular his lands and tenements, goods, chattels, moneys, credits, and effects, as is provided in the first section of an act enti­tled “ an act to provide a method of proceeding against absent and absconding debtors.” A Justice of the Peace certainly possessed the power under and by virtue of this section to issue a writ of attach­ment returnable to the Circuit Court, provided there is nothing in the •organic law, or any subsequent Territorial act forbidding it.

The act of Congress organizing the Territorial Judiciary, vests its power -in a Superior Court, and in such inferior courts as the Legisla­latiire may from time to time institute and establish, and in Justices oft he Peace. The act, in defining and limiting the original and ap­pellate jurisdiction of the Superior Court, contains no limitation or re­striction upon the legislative power in regard to establishing inferior tribunals, or in prescribing the duties of its officers, in the exercise of this discretion full liberty is given the Legislature to organize the inferior courts in any manner they may deem advisable for the public good: provided in doing so, they do not interfere with the original or appellate jurisdiction of the Superior Court. This being the case, the legislature possessed ample power to give to a Justice of the Peace authority to issue a writ of. attachment, and make it returnable before the Circuit Court, in such manner and under such regulations as they might think proper to prescribe. There is no-prior or subsequent act of the Territorial government repealing the 29th section of the statute above recited; and, therefore, this court does not take upon itself to determine whether the issuing of the writ is a judicial or ministerial act. For by the organic law, and under the Territorial Government, a Justice of the Peace was competent to perform either or both acts, at , one and the same time, or at different times.

The question then recurs, what is the true meaning and construc­tion of the 29th section of the act regulating the proceedings in case of attachments? The terms and provisions of the act are somewhat confused and contradictory; but ils meaning and objects are readily discoverable from the evils intended to be remedied, and the means employed for that purpose. A Justice of the Peace has no authority to issue the writ unless the party applying for it brings himself wfilhin the provisions of the act. What, then, is the affidavit required to state? Simply that the defendant is indebted to the plaintiff in a given sum, which is above fifty dollars, and “ that he has good cause to be­lieve the defendant is a non-resident of, or about to remove himself or effects without the Territory, so that the ordinary process of the law cannot reach him, whereby the plaintiff is in danger of losing his debt.” The writ lay, then, against resident or non-resident debtors; or against such persons as were endeavoring to remove themselves and effects beyond the jurisdiction of the Territory; and upon any demand, liquidated or unliquidated, that exceeded fifty dollars. The Justice of the Peace is bound to issue his writ in the county where the defendant’s property can be found, and the writ is made returnable to the Circuit Court. It was intended to secure to credi­tors the payment of their debts, in all cases where their debtors at­tempted to remove themselves or effects beyond the jurisdiction of the court, or limits of the Territory. The act is evidently remedial in its nature and character, and therefore must be construed liberally to prevent the mischief for which it was enacted. This principle will be found folly sustained and illustrated in many of the adjudications upon the issuing of writs of attachment under statutes similar to our own. Fisher vs. Consequa, 2 Wash. C. C. R. 382; Lenox, and another, vs. Howland, and another, 3 Caines R. 257 and 323; Sergeant upon At­tachments, 286. If this principle be true, then a writ of attachment would lie under the act of 22d October, 1823, as well upon an unli­quidated as a liquidated demand. The words of the statute are, “if. any person is indebted to another in a sum exceeding fifty dollars.” What is the meaning of the term indebted? Is it confined to a debt or demand certain? Or does it include damages arising from a breach of contract that may be rendered certain? The term is cer­tainly general in its meaning an'd in its application, and is certainly synonimous with owing. To give it any other construction, would certainly not prevent the mischief, or advance the remedy given by the statute. The statute being remedial, embraces all cases where, upon any claim or demand, one person is indebted to another in a sum exceeding fifty dollars. The affidavit is the foundation of the Justice’s authority to issue the writ.

To put any other construction upon the act, would be to authorise non-resident or absconding debtors to withdraw their means or effects beyond any legal process whatsoever. The idea that a creditor and debtor must both have been residents of the Territory before an at­tachment could issue, is wholly untenable. It is expressly contra­dicted by the words of the act itself, and it is alike forbidden, as well by all true rules of construction upon remedial statutes, as by its spirit and intention.

The mischief intended to be prevented certainly would not be remedied if a non-resident or absconding debtor was allowed, by such. an interpretation, to defeat the just claims or demands of a resident or non-resident creditor. In the case now before the court, so far as the writ of attachment recites the facts of (he affidavit upon which it is founded, they are in strict conformity with the regulations of the statute, and almost a literal copy of the act. The Justice of the Peace was then fully authorized to issue the writ, and as the officer acted in obedience to its commands, he was strictly justifiable in ma­king the levy.

■ If the view we have taken of this subject be correct, then the Ter­ritorial Legislature, as well as the Justice of the Peace, acted strictly within the pale of their organic and legal duties, and of course the defendants in the action could not be liable in trover as for a tortious conversion of the property by an unlawful levy, under the first count in the declaration. The judgment of the court below must there­fore be affirmed with costs.