COURT OF APPEALS.

#### The People *ex rel.*Charles Dusenbury, appellant and relator, agt. Gilbert M. Speir, as justice, &c., respondent.

*Stilwell*act— *confined to actions upon contract.*

The non-imprisonment act (Stilwell act) is confined in its operation to actions upon contract, *expj-ess*or *implied,*or upon a cause of action ior ■damages for the non-performance of a contract.

*275An action for wrongs to persons, or to their property, actions of trover or trespass or replevin are not within the act for they do not arise on contract. The party wronged cannot, by waiving the tort, make a contract and then resort to the fact which constitutes the tort as a ground of arrest *(Reversing S. 0., 54: Sow.,*74).

*Argued March,*1879;

*decided April,*1879.

This was an appeal from an order of the supreme court, first department, upon *certiorari*taken out by the relator, Dusenbury, affirming an order of the hon. Gilbert M. Speir, as justice of the superior court, ISTew York, convicting the appellant, Dusenbury, under the non-imprisonment act (Stilwell act) and ordering his imprisonment. And also an appeal from an interlocutory order of said general term upon a former *certiorari*prosecuted on the application of the plaintiff in the action reversing an order of judge Speir dismissing and vacating the same proceedings and ordering the relator’s discharge.

The case was twice before the general term and will be found reported in 12 *Hun,*70; 54 *How.,*73 ; 52 *How.,*277, and 17 *Hwn*(the next volume coming out).

The facts fully appear in the opinion of the court.

*HoM <& Bla/ndy,*for appellant and relator, Charles Dusenbury.

I. The supreme court had power to review these proceedings upon *certiorari*and the relator was not limited to an appeal (5 *Wait’s Pr.,*461; *Spencer*agt. *Hilton,*10 *Wend.,*608 ; *Townsend*agt. *Monell,*10 *Wend.,*578; *People*agt. *Daly,*4 *Hun,*641) and by the new Code an appeal to this court is proper *(Sec.*190 *Code of Civil Procedure).*

II. The justice had no jurisdiction to issue the warrant in the first instance, as the moving papers show that this is not a case contemplated by the act of 1831.

The act of 1831 is confined in its operation to actions on contract, express or implied.

*276The judgment in the action of *Keiley, as receiver,*agt. *Dusenbury,*and on which these proceedings are based, is founded in fraud, and is not on contract, *express*or *implied,*and the relator might have been arrested on that judgment by *ca sa.*

III. The judgment roll and the supplementary examination were neither admissible in evidence against the relator, and ought not to have been considered, and, if they be stricken out, there is then no evidence against the relator which would justify the issuing of the warrant *(Lathrop*agt. *Clapp,*40 *N. Y.,*332; *Forbes*agt. *Willard,*37 *How.,*193 ; *People*agt. *Underwood,*16 *Wend.,*546; *Wait's Annotated Code, sec.*292 *and cases there*cited; *sec.*192 *of the Code).*

IY. This is a criminal proceeding *(Lynd*agt. *Montgomery,*15 *Wend.,*461; *Moake*agt. *De Forrest,*5 *Hill,*605; *The People ex rel. Latoore*agt. *O’Brien,*3 *Abb. Ct. Appeals Decisions; S. C.,*6 Abb. *[N.*S.], 63).

And defendant cannot twice be put in jeopardy for the same offense *(Constitution, sec.*6, *art.*1; *Block*agt. *The People, Parker’s Crim. Rep., vol.*2, *p.*676; *The People*agt. *Goodwin,*18 *Johns.,*187; *cited*24 *N. Y.,*82; 24 *N. Y.,*101; 25 *N. Y.,*421*and*26 *N. Y.,*183).

Y and YI. The objection was raised on the return of the warrant that the supplementary proceedings were not admissible as evidence. Tiling the controverting affidavit did not waive the objection, inasmuch as the section of the Code is mandatory against its use *(Sec.*292, *Code).*

YII. The judgment is not conclusive of the fraudulent contraction of the debt within the principle laid down in *Krekeler*agt *Ritter*(62 *N. Y.,*372). The relator’s guilt under the Stilwell act was never involved in the original action and the fraud contemplated by the act of 1831 is meditated, deliberated fraud *(People*agt. *Kelly,*35 *Barb.,*454).

YIEC. Even if the judgment and the supplementary examination are competent as evidence the admissions of the relator must be taken together and when so taken they show a *bona**277*fide*transfer of the real estate in dispute *(People*agt. *Norton,*5 *Seld.,*176; *Lawrence*agt. *Ocean Ins. Co.,*11 *Johns.,*241; *Bigelow*agt. *Saunders,*22 *Barb.,*147; *Fenner*agt. *Lewis,*10 *Johns.,*38; *Carver*agt. *Tracy,*8 *Johns.,*427; *Irwin*agt. *Knox,*10 *Johns.,*365; *Smith*agt. *Jones,*15 *Johns.,*229; *N. Y. C. P., Perego*agt. *Purdy,*1 *Hilt.,*269; *Dover*agt. *Hotchkiss,*30 *N. Y.,*498).

IX. The charges of fraud contained in the moving papers having been denied by the controverting affidavit it became obligatory on respondent to adduce proof thereof and this he did not do by competent evidence *(Spencer*agt. *Hilton,*10 *Wend.,*608).

X. The justice had no power to convict the relator in his absence and the record shows that he was absent when convicted (St*anton*agt. *Schell,*3 *Sandf.,*323; *People*agt. *Locke,*3 *Sandf.,*443; *Horton*agt. *Auchmoody,*7 *Wend.,*200).

XL The respondent had no jurisdiction to proceed after reversal of the general term of the supreme court because the judgment of that court was made the judgment of the superior court instead of his judgment.

*D. M. Porter,*for respondent, Gilbert H. Speir as justice.

I. This is a special proceeding and since the new Code cannot be reviewed by *certiorari,*but only by appeal *(The People, &c.,*agt. *Boardman,*4 *Keyes,*59; *secs.*1356, 1357, 1358 *and*1359, *New Code; Dwarris on Stat.,*156; *Dash*agt. *Van Kleeck,*7 *Johns.,*496; *Columbia M. Co.*agt. *Van Pool,*4 *Cow.,*556; *Harrington*agt. *Trustees, &c.,*10 *Wend.,*550; *Bac. Abr., tit. Statutes D).*

II. The judgment roll being part of the evidence upon which the warrant was issued, is conclusive that the debt was fraudulently contracted, &c. *(Krekeler*agt. *Ritter,*62 *N. Y.,*372; *Goodrich*agt. *Downs,*6 *Hill,*438; *Woodburn*agt. *Mosher,*9 *Barb.,*255).

III. The non-imprisonment act and arrest under the Code *278exist together *(The People, &c.,*agt. *O'Brien,*6 *Abb.*[N. S.], *63; Same*agt. *Goodwin,*50 *Barb., 562; Latham*agt. *Westervelt,*26 *Barb.,*256).

IY. There is evidence of the facts without resorting to the supplementary proceedings; but in any event a case under the Stilwell act may be made out, based on supplementary proceedings *(Wheaton*agt. *Fay,*62 N. *Y.,*275; *The People, &c.,*agt. *Speir,*12 *Hun,*70).

Y. This is not a criminal proceeding *(The People, &c.,*agt. *Underwood,*16 *Wend.,*546; *Goodwin*agt. *Sharkey,*5 *Abb.*[N. *S.],*64; *Berthelon*agt. *Betts,*4 *Hill,*577; Moak agt. *De Forrest,*5 Hill, 605; Hall agt. *Kellogg,*2 *Kern.,*325; Spear agt. *Wardell,*1 *Coms.,*144).

Danforth, *J*.

In the course of supplementary proceedings instituted by judgment and execution creditors of Selah Hiler, William S. Keiley was appointed receiver of the property, &c., of the judgment debtor, and as such commenced an action.in the superior court of the city of Hew York against Selah Hiler, Charles Dusenbury, George W. Lane, as chamberlain of the city of Hew York, and others. It appears from the complaint that, at the time* of his appointment, there was an action pending in favor of Hiler against certain parties, in which a considerable sum of money had been obtained and placed in the hands of Lane, as chamberlain, to the credit of the action, and payment of the same to Hiler was forbidden by injunction; that afterwards Hiler, with the fraudulent intent of obtaining possession of the money and preventing it coming into the hands of his creditors, and with intent to violate the injunction order, claimed that the money had been previously assigned by him to Dusenbury, in trust for the benefit of certain creditors of Hiler; that Dusenbury, with knowledge of this injunction, induced Lane to pay the money to him as such trustee; that the assignment under which Dusenbury made the claim was fraudulent and void as against creditors and the plaintiff as *279receiver; and the prayer was that the assignment be declared fraudulent and void, and the plaintiff have judgment against each defendant, payable out of the money received by him. Issue was joined and the trial court found and declared, among other things, “ that the defendants, Hiler and Dusenbury, with the fraudulent intent and purpose of obtaining possession of said money or of transferring and disposing of the same and preventing it from coming to the hands of creditors, and with full knowledge of said injunction order and with the intent to violate it, procured by fraud, an order from the court requiring the chamberlain to pay to Dusenbury, as trustee, the money so deposited with him; that it was so paid to him as trustee; that no assignment was in fact made to Dusenbury, as trustee or otherwise; that he was not, individually or as trustee, entitled to it; that he wrongfully and fraudulently procured possession of the same, and judgment was entered as stated in the affidavit hereinafter referred to.”

After the recovery of this judgment the plaintiff, upon the affidavit of his attorney, to which was attached a copy of the judgment roll in the action above referred to, applied to the respondent for a warrant for the arrest of the relator under the provisions of the act of *1831 (chapter 300) “to*abolish imprisonment for debt and to punish fraudulent debtors.” Upon the return of the warrant a hearing was had and the relator discharged. The general term of the supreme court reversed the determination of the magistrate, and upon a rehearing the respondent, following the rulings of that court, convicted the relator, and he removed the proceedings to the supreme court, where they were affirmed, and from the order of that court the relator has appealed. The first question to be examined relates to the jurisdiction of the officer who issued the warrant. His authority in this case was not absolute. It depended upon the existence of certain facts. He was required by the statute from which he derived his authority to have proof of these facts, and the same statute declared that he should not issue a warrant without that proof. *280which is there prescribed and thus made indispensable to the exercise of this authority. His jurisdiction and its limitation depend upon the provisions of the act above referred to. Under those provisions no person can lawfully be arrested or imprisoned on any civil process issuing out of any court of law, or on .any execution issuing out of any court of equity, in any suit or proceeding instituted for the recovery of any money due upon any judgment or decree founded upon contract, or due upon any contract, express or implied, or for the recovery of any damages for the non-performance of any contract *(section*1), but in such cases it is made “ lawful for the plaintiff ” who shall have obtained judgment against such person to apply to any judge of the court in which such suit is brought for a warrant to arrest the defendant therein *(section*3). Then follow these words of prohibition : “Ho such-warrant shall issue unless satisfactory evidence be adduced to him by the affidavit of the plaintiff, or of some other person, that there is a debt or demand due to the plaintiff from the defendant amounting to more than fifty dollars, and specifying the nature and amount thereof, as near as may be, for which the defendant, according to the provisions of this act, cannot be arrested or imprisoned,” and establishing one or more particulars which are specified but which do not become at present material in this inquiry. We are thus met at the outset with the question, whether the judgment for the enforcement of which these proceedings were instituted was founded upon- contract, or resulted from a suit which Ijad for its cause of action a claim for damages for the non-performance of a contract. And this inquiry must be answered from the affidavit presented to the judge, and on which he based his warrant. The affidavit states the recovery of a judgment against the relator in favor of the plaintiff, William S. Keiley, as receiver, &c,, of Selah Hiler, for $3,627.91, but neither states the cause of action, nor the nature of the indebtedness, nor that it was upon contract, express or implied, nor any fact from which either of these conditions can be inferred. The *281affidavit, however, contains these words: “ Deponent further says, and charges that he verily believes, that the defendant, Dusenbury, neither had any title or right to the moneys received by him from the chamberlain of the city of blew York, which is particularly mentioned in the judgment roll in which the judgment in favor of the plaintiff was recovered, and that he well knew that he had none, but that he obtained it in disobedience of the injunction restraining him from receiving the same, and by fraud and imposition on the court of common pleas, which court made the order on which he obtained the money, and this statement is made upon the judgment roll in this action and findings of fact contained in said judgment roll, and upon the documentary evidence put in evidence on the trial to obtain said judgment. Deponent further says the said judgment is wholly unpaid and constitutes the foregoing indebtedness; and "further says that for the said cause of action the defendant, by the first two sections of the act (above referred to), cannot be arrested or imprisoned as defendant is advised and believes.”

The clause last cited states a mere inference of law, and that not the verified inference of the affiant, but his belief merely of the truth of advice given him. It is not enough *(Latham*agt. *Westervelt,*26 *Barb.,*260; *Brodhead*agt. *McConnell,*3 *Barb.,*187). Every fact stated in the affidavit as to the cause of action, meager as it is in facts, leads to an inference that there was no contract at the foundation of the action, nor any act or circumstance from which one could be inferred or implied. Indeed, the facts charged indicate directly a cause of action resting in tort; that the defendant obtained the money without right or title, and that he well knew that he had none, excludes the idea that he received it under a contract; and when we are told, furthermore, that he received the money in disobedience of an injunction order restraining him from receiving it, and then that he obtained it by fraud and imposition on the court, we perceive not only that there was no contract, but that there is no fact from *282which a contract can he implied, and that, if the allegations are true, the cause of action was not one for which the defendant, according to the provisions of the statute, could not be arrested.

Nor is there any fact stated in the judgment roll which aids or strengthens the affidavit. There is nothing in the complaint or findings to indicate that the cause of action was a contract, express or implied, and, upon the hearing before the respondent, after the arrest of the defendant, he so held, saying: “ In looking at the judgment roll, it is plain that the warrant herein should not have been granted, for the defendant could have been arrested in that original action, and, if so, he cannot be prosecuted under £ the act to abolish imprisonment for debt.’ ”

And the learned judge, who delivered the.opinion of the general term, upon the first review (12 *Hun.,*70), says : ££ The complaint in the receiver’s action neither set forth in terms, nor in any manner alluded to any contract existing between himself or the judgment debtor and the defendant, Dusenbury, either as a basis of the liability desired to be enforced and maintained, or otherwise,” but upholds the jurisdiction of the judge, upon the ground that “ from the facts imperfectly stated in the complaint, as they were, it could readily be seen that an implied contract existed in law for the payment of the moneys received by the defendant, Dusenbury, to the receiver, in case he had no right to receive and hold them upon the ground claimed by him.”

We cannot agree with the learned judge in this construction of the statute; on the contrary, we think that the express contract referred to in the statute is one which has been entered into by the parties and upon which, if broken, an action will lie for damages, or, if implied, when the intention of the parties is not expressed in words, but may be gathered from their acts, and from surrounding circumstances, and in either case • must be the result of the free and *bona fide*exercise of the will, producing the ££ *aggregaüo menüumfi**283the joining together of two minds, essential to a contract at common law. There is a class of cases where the law prescribes the rights and liabilities of persons who have not, in reality, entered into any contract at all with one another, but between whom circumstances have arisen which makes it just that one should have a right and the other should be subject to a liability similar to the rights and liabilities in certain cases of express contract. Thus, if one man has obtained money from another through the medium of oppression, imposition, extortion or deceit, or by the commission of trespass, such money may be recovered back, for the law implies a promise from the wrong-doer to restore it to the rightful owner, although it is obvious that this is the very opposite of his intention. Implied or constructive contracts of this nature are similar to the constructive trusts of courts of equity, and in fact are not contracts at all *(Addison on Contracts,*22). And a somewhat similar distinction is recognized in the civil law, where it is said: “ In contracts it is the consent of the contracting parties which produces the obligation; in *quasi*contracts there is not any consent. The law alone or natural equity produces the obligation by rendering obligatory the fact from which it results. Therefore these facts are called *quasi*contracts, because, without being contracts, they produce obligations in the same manner as actual contract ” (1 *Potter on Obligations,*113). And, again, at common law, says Blackstone *(vol.*3, p. 165): *“*If any one cheats me with false cards or dice, or by false weights or measures, or by selling me one commodity for another, an action on the case lies against him for damages upon the contract which the law implies, that every transaction is fair and honest.” So, if money is stolen, its owner may sue the thief for conversion; doubtless he may sue him for money had and received to his use, but, in either of these cases, could it be claimed that the wrong-doer was within the protection of the act passed to abolish imprisonment for debt, or that the contract implied by law was the contract specified in the first *284section of that act ? Surely not. And to that class the present case belongs. The court below expressly puts the obligation upon the mere authority of the law and makes a contract *“*by force of natural equity.” The learned judge says: “ The law implied a promise to pay over as the judgment directed that to be done.” So obligations are created in consequence of frauds or negligence, and, in either case, the law compels reparation and permits the tort to be waived; but there is no contract that can only come from a convention or agreement of two, not by the option or at the election of one.

In the case before us there is not even an election, for the complaint states no contract nor charges any *assumpsit.*It is also claimed by the respondent’s counsel that inasmuch as the judgment declares the assignment under which the defendant claimed the money in question to be void, therefore Dusenbury must be deemed to have fraudulently incurred the obligation for which the'action was brought, but that position is subject»to the objection beforementioned, in that the debt or obligation spoken of in the act of 1831 means a contract resulting from the voluntary arrangement of the parties, and not one implied by law for the purpose of giving a remedy for a wrong suffered.

That the debt or obligation was fraudulently incurred is one of the particulars which proved to exist, permits the judge to issue the warrant, but it must- be remembered that in an action for the recovery of debt no arrest can be had, and it is mere evasion to say the defendant violated the injunction, imposed upon the court, made a claim under a fictitious assignment, and so wrongfully obtained the money; he refuses to pay it over but the law says he ought to, therefore he shall be deemed to have promised, hence you may sue on that assumpsit, but you cannot arrest because the non-imprisonment law says you shall not in an action on contract. Therefore you set out in an affidavit the very frauds in consequence of which the law implied the contract and demand the arrest of the defendant. It is very clear that an action for *285wrongs to persons or to their property, actions of trover or trespass or replevin, are not within the section, for they do not arise on contract. The party wronged cannot, by waiving the tort, make a contract and then resort to the fact which constituted the tort as a ground of arrest.

*Fassett*agt. *Tallmadge*(37 *Barb.,*436) was an action similar to the one upon which these proceedings are based, to set aside a conveyance made by a. debtor of the plaintiff to the defendant, Tallmadge, on the ground that it was fraudulent and void as to creditors ; it was so held and the defendant was ordered to pay to a receiver appointed by the court a sum of money for the property received by him.

In considering whether he was liable to be imprisoned, the court says: *“*The first section of the act to abolish imprisonment for debt, and the one hundred and seventy-ninth section of the Code *(4th sub.)*are expressly confined in their operation to cases of contract, or in which the debt is contracted or an obligation is incurred. Neither of them apply to a case like the present, where the action is a proceeding in equity to set aside a conveyance or assignment of personal property.”

As the complaint stated no cause of action upon contract, and as the affidavit presented to the judge contained no statement or assertion tending to establish a. contract, express or implied, as the basis of the judgment, but, on the contrary, an action to recover the fund on the ground of its unlawful appropriation or conversion by the defendant showing misfeasance or malfeasance on his part rather than a contract liability, the case is not within the statute.

Many other questions are raised by the appellant’s points, but as the conclusion to which we have arrived in regard to the one above mentioned goes to the foundation of the proceedings, it is unnecessary to discuss them.

The order of the general term should be reversed, and the warrant of judge Speir for the arrest of the relator, dated 14th of November, 1876, and all subsequent proceedings thereunder, vacated and set aside.

All concur, except Miller, J., absent at argument.