HAVILAND against KANE

HAVILAND against KANE. Supreme Court, First District ; Special Term, November, 1865. Execution against the Person.—Motion for Supersedias. Where a defendant has been arrested in the action, the three months within which the plaintiff must charge him in execution, is from the last day of the special term for non-enumerated motions, following that at which judgment was obtained. Motion for a supersedeas. In this action, wiiich was brought by John S. Haviland against Peter Kane, the defendant was arrested, and not charged in execution after judgment had against him. He now moved for a supersedias. O’ Gorman & Wilson, for the motion. A. J. Dittenhoefer, for the plaintiff, opposed. I. The motion is premature. This is a technical proceeding, and the defendant must bring himself within the strict letter of the law. • The following is the provision of the statute: “ 1. When a defendant against whom an order of arrest has been obtained, is at the time judgment is rendered, in custody of the sheriff, the plaintiff must charge him in execution within three months from the last day of the term next following that at which judgment is obtained ” (2 Rev. Stat., 556, §§ 36, 37). If the word “ term ” in the statute be held to mean what the legislature, at the time of the passage of the law, understood by the word, at that time the word “ term ” was only applied to a court when it sat in banc. Judgment was entered in this action on the 30th day of June, 1865. The statute says the defendant must be" charged in execution within three months from the last day of the term next following that at which judgment is obtained. H. Judgment is generally obtained either at the term of the circuit or special term (trial without a jury), and therefore, it must mean either one or the other of these terms. It is no term of this court within the meaning of this statute, when a justice sits at cham bers to hear motions. It means a term of this court wh ere issues are tried by the court and judgmentis rendered upon them. (a) A term is the space of time during which a court holds a session ; sometimes the term is a monthly, at others it is a quarterly period, according to the constitution of the court (Bouvier’s Law Dictionary). III. Three months have not yet elapsed since the last day of the term next following that at which judgment was obtained. This court was not sitting in July, August or September, 1865 ; there was not “ term ” held in those months within the meaning of the statute. The first term of this court since the entry of judgment in this action was October. It is contended by the counsel for defendant, the word term in the statute should be held to apply to the branch of the court where the judge sits at chambers. The whole statute becomes ambiguous and uncertain. From what term shall the three months be calculated ? from the term at chambers, the special, general term, or circuit % To avoid confusion, as to what is meant by the “ term ” the construction must be that the term meant is the one that existed at the time of the passage of this law, or the one at wdiich issues are tried. IV. The defendant has a perfect remedy. He can apply to the court to compel plaintiff to .issue execution. V. The courts have always strictly construed the provisions of this statute (see Lippman v. Petersberger, 9 Abb. Pr., 209 ; S. C., 18 How. Pr., 270). In Dusart v. Delacroix (Supreme Court, First District, Special Term, 1864), it was Held, that where the execution is for more than five hundred dollars, a defendant applying for a discharge under the statute, must have been three months charged in execution. It is not enough that his imprisonment under the execution and the order of arrest has continued for three months. This was a petition by the defendant to be discharged from imprisonment. It appeared that the defendant was arrested under an order in this action on the 29th of July, 1862, and had ever since been in custody Judgment was entered on the 9th of May, 1863, for sixty-six thousand four hundred and forty-four dollars and seventy-nine cents, and on the 9th of October 1863, the defendant was charged in execution. On the 19 th of December, 1863, the defendant served notice on the plaintiff’s attorney that on the 4th of January, 1864, he would present the present petition, and apply for a discharge. C. L. Spilthorn and John B. Fogarty for the plaintiff, opposed the application on the ground that the defendant had not been three months in custody under the execution as required by the statute. James M. Smith and H. F. Averitl, for the defendant, contended that it was not necessary that the defendant should have been three months charged in execu'ion, but that it was sufficient that he should be charged in execution and in prison under that and the order of arrest for that period. Barnakd, J., stated that he had examined the statute with great care and had submitted the question to some of his associates, and after consultation they were rmanimously of the opinion that where the execution is for more than five hundred dollars, a defendant applying for his discharge under this "statute must have been three months charged in execution before he can make this application; and that as the defendant in this case was so charged for more than five hundred dollars, and had not been in custody' under the execution for three months when he presented the present petition, the application must be denied. [MAJORITY — Clerke, J.] Clerke, J. We are to presume, of course, that the legislature had a special purpose in allowing a term to intervene before a defendant, who is in custody of the sheriff at the time judgment is rendered against him, can move for a supersedeas, on the ground that the plaintiff has not charged him in execution. What was this purpose ? Obviously to enable either party to make any motion, which the condition of the case, or of the parties, should render allowable or necessary. At the time the statute was enacted—April 19, 1813 (1 Rev. Stat., 353, § 12; 2 Rev. Stat., 256, §§ 36, 37)—motions of any kind could be heard only at one of the four general terms of the court. Afterwards, indeed, in 1830, special terms were established for the purpose of hearing and deciding, during the vacations intervening between the general terms, all such non-enumerated business as may arise, except such as the court should by rule direct to be heard at the general term. But, at the time at which the statute to which I have referred, was first enacted, and at the time it was copied by the revisors of the Revised Statutes, there were only those four general or calendar terms, at wliich the justices sat in bane, and at which alone, as I have said, motions could be made. The practice now, however, is entirely altered. Terms for non-enumerated motions are heard during every month in the year. So that the purpose which induced the legislature to allow a term to intervene before a defendant in custody could move for his discharge, is now satisfied every month, instead of every three months, as formerly. The provision must he construed so as to conform to the present system, and not .to one which no longer exists. There could he no adequate object now for allowing a general term to intervene before a defendant could move for his discharge ; because no motion relating to the action could be made at a general term. On the contrary, the special term, is the branch of the court, where alone such motions can he made-; and the period within which the plaintiff must charge the defendant in execution, is from the last day of the special term for non-enumerated motions, following that at which j udgment was obtained. In thé present case this was, at the farthest, the 5 th day of August, being the Saturday preceding the first Monday in August. More than three months have elapsed from that day; and, as the plaintiff has neglected to charge the defendant in execution within that time, he must he discharged. The motion is granted.