Miller and Becker, plaintiffs in error, vs. Scherder, defendant in error

*Miller and Becker, plaintiffs in error, vs. Scherder, defendant in error. Where a plaintiff unites in his suit causes of action upon contract and in tort, and a general verdict and judgment are rendered in his favor, it seems that the defendant is exempted by the non-imprisonment act from imprisonment upon the execution. But if, in such a case, the plaintiff fails in his action, so that costs are recovered against him, he will be deemed to have conferred upon the defendant the most beneficial remedy for the collection of such costs. He may therefore be imprisoned. The declaration in a justice’s court alleged, in the first count, that the defendant sold to the plaintiff 132 pounds of beef unfit for man to eat, and so unwholesome that it occasioned the illness of the plaintiff and his family, and great expense. In the second count, it charged the sale of impure and unwholesome beef, and which the defendant knew to be so. In the third count, it was alleged that the defendant, intending to cause the ruin of the plaintiff's health, sold to him a quantity of beef, as provision, which was unfit for man to eat ; to the plaintiff’s damage, &c. The plaintiff had a verdict and judgment thereon, which was reversed with costs on certiorari in the common pleas, and he was then imprisoned upon execution for such costs. Held, that the imprisonment was lawful. Scherder sued Miller and Becker in the supreme court to recover damages for a false imprisonment. On the trial, before Parker, circuit judge, at the Schoharie circuit in 1844, the case was this : In 1837, Scherder brought a suit in a justice’s court against Becker, and declared in the following form : “ The plaintiff complains of the defendant in a plea of trespass on .the case,for that the defendant, in the month of December last past. Sold to the plaintiff 132 pounds of beef, which said beef was unfit tor man to eat, and was so unwholesome that it occasioned the plaintiff and his family great illness, damage, and expense. Also for that the defendant sold to the plaintiff one other certain quantity of heef, which was impure, unwholesome, and which the defendant knew so to be. Also for that the defendant, intending to produce the ruin and destruction of the plaintiff’s health, sold to him, as provision, a certain quantity of heef which was unfit for. man to eat, whereby the plaintiff suslamed great toss. All to the plaintiff’s damage of $50.” On *the trial of the suit in the justice’s court the plaintiff had j-*9gg a verdict for $25 damages, on which the justice rendered judgment in his favor. The defendant removed the cause by certiorari into the common pleas of Schoharie county, where the judgment was reversed, and the defendant had judgment for $25, costs of prosecuting the writ of certiorari. For the collection of those costs, Miller, one of the defendants in this suit, as attorney for Becker, the other defendant, issued a writ of capias ad satisfaciendum against Scherder, on which the latter was arrested and taken to jail, where he was imprisoned about four weeks; and for that arrest and imprisonment this action was brought. The return of the justice to the certiorari did not set forth any of the evidence before him, nor was it shown on the trial of the present suit what that evidence was. Upon these facts the question at the circuit was, whether the plaintiff was exempted from such arrest and imprisonment by virtue of the act to abolish imprisonment for debt, and to punish fraudulent debtors. (Laws of 1831, p. 396.) The circuit judge held that under the exemption declared by that act, the plaintiff was not liable to the imprisonment in question, and directed the jury to find such damages as should be just. The defendants excepted. The plaintiff had a verdict for $100, which the supreme court, on bill of exceptions, refused to set aside, and after judgment on the verdict, the defendants brought error to this court. S. Stevens & N. Hill, Jr. for the plaintiffs in error. Unless it clearly appears that the ca. sa. upon which the defendant in error was imprisoned, was issued in a suit instituted for the recovery of money due upon a contract, or for the recovery of damages for the non-performance of a contract, it is not a ease within the statute abolishing imprisonment for debt; and the imprisonment upon that process was lawful. (Laws of 1831, p. 396; Rogers v. Dibble, 8 Paige 11.) Statutes like the one in question, designed to destroy a common-law remedy, are not to be extended to cases which are not plainly within them. (Bac. Ab. tit. Stat. (I), 6; 12 Mod. Rep. 513). The suit in the common pleas in which the ca. sa. was issued, was an original suit, commenced in that court by the present plaintiffs in error, against the * defendant in error, to reverse a judgment which the defendant in error had obtained against them in a justice’s court. It was not a suit or proceeding instituted for the recovery of money at all. It did not partake of the nature of the suit before the justice. In this respect a certiorari to a justice, which is in the nature of a writ of error, differs from an appeal. In an appeal the cause is tried de novo—it is the same cause—the same plaintiffs and defendants. Ho new suit is instituted. A writ of error is a new suit. The parties and attorneys may be, and frequently are, different from those in the judgment sought to be reversed. It is commenced by original writ. (Jaques v. Cesar, 2 Saund. 100, note (1); 1 Archb. Pr. 207; 6 Jac. Law. Dic. tit. Writ, 458; 2 Saund. 101 (G), 6th ed. latter part of note (n); Batchellor v. Ellis, 7 T. R. 333; Blunt v. Greenwood, 1 Cow. 18, 19; Lessee of Taylor v. Boyd, 3 Hammond 354). The decision of the supreme court in Phelps v. Barton (13 Wend. 68), cannot be sustained upon principle. But if the suit on the writ of certiorari in the common pleas is to be affected by the cause of action in the suit before the justice, then we submit it does not appear that that suit was instituted for the recovery of money due on a contract, or for the recovery of damages for the non-performance of a contract. The whole declaration in the suit before the justice, according to any reasonable mode of interpreting it, shows that the gravaman of the action was tort. The first count alleges no warranty or assumpsit of any kind; the gravaman, so far as any is stated, was fraud, the plaintiff in that suit relying upon the scienter presumed from the circumstances set forth. (12 John. 468; 1 Denio, 387, 8.) The injury which is alleged in that count to have been sustained by the plaintiff, clearly indicates the cause of complaint to be a tort. Conceding this count to be defective as a count in tort, it is equally so as a count in assumpsit. The court should, therefore, look to the other counts as defining the nature of the action. Even if the count is equivocal, the same course should be adopted to ascertain its character ; for if the other counts are in tort, the plaintiff shall not be presumed to have intended a misjoinder ; and besides, every *equivocal pleading is to be construed most strongly against the party who interposes it. (2 H. Bl. 530; 1 Saun259, n. 8). The second and third counts are clearly in tort. (2 John. 550; 6 East 333; 5 Pick. 425.) They contain, in substance, everything necessary to be averred in an indictment for a misdemeanor at common law, for selling unwholesome provisions. (2 East’s P. C. 822.) The only general issue applicable to such a declaration, would be not guilty, inasmuch as a plea of nonassumpsit would not deny anything alleged in the declaration. But if the first count of the declaration should be deemed to be in assumpsit, it is insisted that the court cannot, from that fact, judicially d< termine and adjudge that the suit before the justice was instituted to recover money due on a contract, or damages for the breach of a contract. The character of the action must be determined from the whole declaration, and if the plaintiff has clearly set up two causes of action, one in tort and one in assumpsit, how can it be said that the action was brought for one cause more than the other? And when there is a general verdict for the plaintiff on all the counts, how can it be determined from the record for which cause of action the plaintiff recovered ? In such case it cannot be legitimately said that the suit was instituted to recover money due on a contract, or damages for the breach of a contract. If the suit be in fact instituted for both causes of action, it is not the kind of a suit or proceeding mentioned in the first section of the act to abolish imprisonment for debt. The case of Brown v. Treat, (1 Hill, 225,) is not sustainable upon principle. It allows a plaintiff to take the chance of convicting the defendant of a fraud, and after he is defeated to insist that his action was on contract. (7 Hill 578.) A Taber, for the defendant in error. [MAJORITY — Shankland, J.,] Shankland, J., delivered the opinion of the court. We are left to decide the form of the action which was instituted in the justice’s court by Scherder against Becker, from the declaratifilsd in that court, and the execution issued from *the county court, to collect the costs, on the reversal of that judgment; for the arrest and imprisonment on which execution this suit is prosecuted. That declaration purports to contain three counts, but they are so loose and shadowy, as to form, that neither of them contains the necessary formal statement of facts and averments to constitute a good cause of action, either in tort, or on contract. Had the justice’s return to the certiorari, which was given in evidence on the trial of this cause, contained the evidence which was given to support the declaration in the justice’s court, all doubts might have been removed as to the true grounds of recovery in that court. But that evidence was not contained in the return, nor was the omission supplied on the trial at the circuit. The second count alleges “ that the defendant sold to the plaintiff one other certain quantity of beef, which was impure, unwholesome, and which the defendant knew so to be.” These allegations would seem to characterize this count as one for tort, as the defendant’s guilty knowledge of the impure and unwholesome quality of the beef is put forward as the point and gist of the complaint. No contract, consideration, or promise, is alleged, from which we can infer that the party intended to rely on a breach of contract, as a ground of recovery. Evidence of the sale of unwholesome beef by the defendant-io the plaintiff, and of the defendant’s guilty knowledge of its evil qualities, would be admissible and legitimate; but proof of a contract of sale and warranty of the article sold, and omission of proof of the defendant’s guilty knowledge, would not be expected, and would hardly be admissible if objected to, on the ground of variance under this count. The third count more clearly developes the intent of the, pleader, as to the form of his action. It alleges that the defendant, intending to produce the ruin and destruction of the plaintiff’s health, sold to him as provision, a certain quantity of beef, which was unfit for man to eat, whereby the plaintiff sustained great loss and damage.” All the elements of a good count in tort are here alleged—the evil intent, the means used, and the damage resulting therefrom. It would be difficult to express a good cause of action, in fewer words. It is tantamount *to a charge of wilfully administering poison to the plaintiff. The first count is so ambiguous in itself, that by the loose rules of pleading allowable in justice’s courts, evidence of either deceit or breach of contract would be admissible in support of it. It alleges that the defendant sold to the plaintiff, one hundred and thirty-two pounds of beef, for about five dollars, which said beef was unfit for man to eat—was so unwholesome that it occasioned the said plaintiff and his family great illness, damage and expense. Neither a warranty of wholesomeness, or of facts from which a warranty would be implied, are alleged. For, although the law will imply a warranty of provisions sold for domestic use, and immediate consumption, yet when the party comes to declare upon such a contract, he must aver a warranty as in other actions, or set out all the facts, from which the law will raise such a contract by implication. In Moses v. Mead, (1 Denio, 387,) the pleader declared as upon an express warranty. But in this count, it is not alleged that the beef was sold for immediate consumption, or for domestic rise, or that the defendant knew that it was desired for that purpose. We are of opinion, therefore, that the first count must have been intended to set forth a cause of action of the same nature as those contained in the second and third. It cannot be presumed, that the party contemplated a misjoinder of causes of action, and thereby subject himself to a demurrer; and to limit his recovery to the actual damage, instead of a more liberal rule of compensation; and to waive his right to enforce his judgment by imprisonment, in case of recovery. The amount of the recovery before the justice, as compared with the price of the beef purchased, in the absence of proof of actual damage, negatives the idea that the plaintiff’s recovery was upon contract. The ca. sa. which was given in evidence, as a part of the record, recites the action to have been in trespass on the case, and in this respect, corresponds with the declaration. We do not intend to question the rule laid down in Brown v. Treat (1 Hill 225), as limited and explained by Mr. Justice Bronson, Suydam v. Smith (7 Hill 182), that where counts *on contract and in tort are joined in the same declaration, and a general verdict and judgment are rendered thereon, the plaintiff cannot enforce such judgment by imprisonment of the defendant. In a case thus situated, the plaintiff having elected to join a non-imprisonment cause of action, with one of a different character, shall be deemed to have elected to take his remedy against property alone; because the law will not allow him to prejudice the rights of the defendant, by mingling his damages. But we see no reason for applying the same rule to the case of a plaintiff who fails to recover in such an action. Although the law will allow him to elect against himself, a less beneficial remedy, he cannot thus limit the defendant’s rights. If he chooses to c'ombine in the same action, tort and breach of contract, and fails in both, he should be held to have conferred upon the defendant the most beneficial remedy for recovery of the costs, which either cause of action will confer, if it had con stituted the sole cause. By the adoption of such a rule, we do no violence to the act in question, because the plaintiff is not, by its provisions, exempt from imprisonment, if his suit is brought for'any other-cause than “the recovery of money due upon a judgment or decree founded upon contract, or due upon a contract express or implied, or for the recovery of damages for the non-performance of a contract.” Nor do we necessarily injure the plaintiffs by this construction. If they desire to escape the perils of imprisr onment, in case of defeat, they can, and should, declare upon contract alone, and without ambiguity, so that the defendants can have the benefit of the exemption conferred by the statute upon them. Then the exemption will be mutual, both in the court where the action is originally commenced, and in any appellate court where it may terminate, as was properly settled, by an equitable construction of the statute, in the case of Phelps v. Barton (13 Wend. 68), and cases there cited. We therefore decide that, whether the first count in the declaration be on contract, or in tort, inasmuch as it is joined in the same declaration with other counts clearly in tort, the plaintiff was subject to imprisonment on the execution, issued *on the judgment of reversal; and that the judgment in the court below must be reversed with costs. Jewett, C. J., dissented. Judgment reversed. See Brown v. Brockett, 55 How. Pr. 32; Philbrook v. Kellogg, 21 Hun 238; and Catlin v. Adirondack Co., 81 N. Y. 639, reversing s. c. 20 Hun 19.