Russell v. Meacham , 16 How. Pr. 193 ( 1858 )

Harris, Justice.

But for the amendment to the last clause of the 5th subdivision of the 244th section of the Code, adopted in 1857, I should have been inclined to hold with Mr. Justice Clerks, in Lane agt. Losee, (11 How. 360,) that the provisions of that paragraph had no application to an ordinary action upon contract. I cannot suppose that the legislature intended by such an enactment to restore, or even authorize imprisonment for the non-payment of a demand, in cases where such imprisonment would have been unauthorized before. The provision in question should be so construed as not to repeal or in any way limit or qualify the effect of the act which abolishes imprisonment for debt. Whether or not the order contemplated by this provision shall be made, is, in all cases, a question addressed to the discretion of the court, and in my judgment such an order should never be granted, when its effect might be to imprison the defendant, where he would not have been liable to imprisonment upon a judgment recovered for the same demand.

But the paragraph as now amended, seems to be relieved of this difficulty. The court may now make an order in the nature of a judgment and enforce it by execution, or in a proper case, may enforce obedience to the order by attachment. The latter remedy is only appropriate where the defendant, upon a final judgment in the same action, would be liable to imprisonment.

In the case now before me, three distinct causes of action are embraced in the plaintiff’s claim. One of these is undefended. I can see no more objection in principle against permitting the plaintiff to enforce payment of this undisputed demand before the issues upon the other demands embraced in the complaint are tried, than there would have been if separate actions had been brought for the several demands. Were the plaintiff’s claim founded on a single cause of action, I should not in any ordinary case, feel inclined to split up the demand by ordering payment of a part before judgment. I' do not think the provision in question was intended to apply to such cases.

In this case, an order may be entered requiring the defendant to pay the sums specified in the second count of the com plaint, with the interest thereon, and that such payment be enforced by execution against the property of the defendant.

The plaintiff has also applied for leave to collect the costs of the action, in addition to the amount admitted to be due, but such costs are only allowed upon the recovery of final judgment. Nor is this a proper case for charging the defendant with the cost of the motion.