Jan. Term, 1860.

#### In the matter of the petition of Luke Mowry for a writ of *Habeas Corpus.*

Upon a judgment for damages for the wrongful and fraudulent misapplication and conversion of school land certificates, deposited as security for a loan, an *53execution against the person may he' issued, after the return of an execution against property, unsatisfied in whole or in part.

The defendant in such a caso is not entitled to exemption from imprisonment der section 16 of Article X of the constitution of this state, which provides that “no person shall be imprisoned for debt arising out of or founded on a contract, expressed or implied.”

Where a sheriff is of opinion that the property of an execution defendant will not sell for enough to pay the expenses of the sale, he may, at his peril, refuse to levy upon it, and stating the facts, return the execution unsatisfied; and such return *isp'imufaeie*sufficient to authorize the issuing of an execution against the person.

Where a petition for a *habeas corpus*alleges that the petitioner is confined in jail on an execution against his person, which was issued irregularly, or in an action in which the petitioner was not liable to arrest, the return of the jailer is sufiicient, if it shows that the petitioner is held by virtue of an execution against his person, which is valid upon its face, and which is produced and a copy of it annexed to the return; and the petitioner should allege by way of answer or avoidance, any facts which would show that the imprisonment, though apparently lawful, is really not so.

*Nat Hollins,*for petitioner.

*Smith, Keyes & Gay,*and *Wakeley & Tenney, contra.*

April 28.

*By the Court,*

Dixon, C. J.

*Certiorari*to the Judge of the Ninth. Circuit, to bring up proceedings Rad before Rim on an application for a writ of *habeas corpus,*and for the discharge of a petitioner from imprisonment. The return of the judge, so far as it is necessary to state it, shows the following facts:

The petitioner, *Lake Mowry,*was brought before him on a *habeas corpus,*allowed on petition, setting forth that the petitioner was confined in the common jail of the county of Dane, upon an execution issued on a judgment rendered in the circuit court for that county, in favor of one *Algernon S. Wood,*and against the petitioner, *for a debt arising out of an express*contract; that an execution against the property of the petitioner had previously been issued upon the same judgment to the sheriff of Dane county, to whom the petitioner had offered unincumbered real estate belonging to himself in that county, sufficient in value to satisfy the whole or a part of the judgment, and requested that it be seized and sold, and whom he had likewise informed that he owned other unin-cumbered real estate in the county, which he would turn out in case that offered should prove insufficient; and that the *54sheriff, without the knowledge of the petitioner, and before the expiration of sixty days from the time it was issued, returned the execution unsatisfied, and admitted in his return that the petitioner had offered real estate, upon which he had refused to levy. A copy of the return was annexed to the petition, in which the sheriff certified that he had made diligent search for personal property belonging to the petitioner, with which to satisfy the execution, and that he could find none; and that he had demanded real estate, upon which the petitioner had turned out lot 7, in block 80, in the village of Howard, Dane county, which was worthless, and would not, if sold, pay the expenses of sale; and therefore he returned the execution unsatisfied. The execution against the person was thereupon issued. A cojcy of each execution was annexed to the petition, and no exception was taken to the form or substance of either, save that the one against the person was not signed by all the attorneys who acted for *Wood*in this suit. It appears that two firms of attorneys appeared for him, and it was subscribed by only one of them. This objection was considered so groundless that it was abandoned in this court.

The keeper of the jail returned that he detained the petitioner by virtue of the execution against his person, which he produced. To this return the petitioner demurred, on the ground that it did not deny that the action was one in which he could not be arrested, and that he had turned out unin-cumbered real estate upon the execution against Ms property, on which the sheriff had refused to levy. If the peti-' tioner desired an inquiry into the nature of the action between himself and *Wood,*and the facts touching the service and return of the first execution, as he evidently did, this was an entire mistake of practice. The jailer was only required to return the authority and true cause of imprisonment, as they had come to his knowledge, and it being an execution, he was to annex a copy to his return and produce the original. R. S., chap. 158, sec. 18. This he did, and the execution being valid on its face, constituted, as to him, a good cause for the detention, wMch the demurrer admitted. 'Appendix, 3 Hill R, 658, note, 28. The causes assigned for *55the demurrer were not matters of fact wMch the officer, in Ms return, was "bound to admit or deny. They were strictly matters in avoidance of the return, which the petitioner should have alleged and proved, by way of answer, to show that the imprisonment, apparently lawful, was nevertheless not so, and that he was entitled to Ms discharge. This is the practice clearly indicated by the statute. Sec. 26, chap. 158, R. S.

The circuit judge, however, overlooked the mistake of the counsel for the petitioner, and proceeded to investigate the merits of his imprisonment, so far as they were made to appear ; and we will do the same thing. The record in the case of *Wood vs. Movrry*was produced, but no other proof was offered. A copy of the record is returned by the judge, from which it appears that the action was for *damages alleged to ha/ve been sustained by Wood on account of the wrongful and fraudulent misapplication and*conversion, *by the*petitioner, *of certain school land*certificates, the property of *Wood.*The complaint alleged that *Woód*had borrowed from the petitioner a sum of money, and, to secure the payment of the note, deposited with Mm the certificates, a description of wMch was given; that the petitioner had transferred the note to third parties, who had obtained a judgment thereon; that the plaintiff was ready and willing and had offered to pay the judgment to the owners or to the petitioner, provided the certificates were delivered up to him; but that the owners of the judgment could not do so, as they had never had them in their possession, and the petitioner refused, falsely and fraudulently pretending he had sold them as a pledge, when, in truth and in fact, he had wrongfully and fraudulently misapplied and converted them to Ms own use. The value of the certificates was alleged to have largely exceeded the amount of the note. The petitioner, by his answer, denied the wrongful and fraudulent misapplication and conversion of the certificates, and insisted that he had made sale of them whilst the note was still in his possession, and applied the proceeds in part payment, as it was lawful for him to do. The jury, under the instructions of the court, found Mm *“*guilty as charged in the complaint,” and assessed the plaintiff’s damages, for wMch the judgment was entered.

*56Two questions were considered by the judge: 1. Whether the judgment was for a debt arising out of a contract; and 2. Whether the return of the sheriff to the execution against the property of the petitioner, was sufficient to authorize the issuing of an execution against his person. He decided both against the petitioner; and we think he was unquestionably right.

Section 2' of chapter 127 of the Revised Statutes, provides, among other things, that the defendant may be arrested and held to bail in an action for the recovery of damages, on a cause of action not arising out of contract, where he is not a resident of the state, or is about to remove therefrom, or where the action is for an injury to person or character, or for injuring, or for wrongfully taking, detaining or converting property. Section 7 of chapter 134 provides, that if the action be one in which the defendant might have been arrested under sections 2 and 4 of chapter 127, an execution against the person of the judgment debtor maybe issued to any county within the jurisdiction of the court, after the return of an execution against Iris property unsatisfied in whole or in part.

The constitution, section 16, Article I, provides, that “ no person shall be imprisoned for debt arising out of or founded on a contract, expressed or implied.”

Eor the petitioner it is insisted, that as there was a contract between the parties in reference to the certificates, upon which an action might have been maintained, that which was instituted, must be considered as of the same nature, and treated as if brought upon the contract itself. In support of this view, we are referred to the case of *Brown vs.*Treat, 1 Hill, 255, in which it was said, that the act to abolish imprisonment for debt in the state of Hew York, was intended to reach all cases wherein the plaintiff might, in fact, have given credit to the defendant, and that he could not, by electing to sue in case or trover, change the truth, and deprive the defendant of his" privilege. The case did not call for a decision of that question, and the doctrine thus intimated was afterwards directly repudiated, both by the supreme court and by the court for the correction of errors. *Suydam vs.*Smith, 7 Hill, 182; *McDuffie vs. Beddoe,*id., 578. *57Admitting the analogy between our constitution and their statute, the authority of that state is clearly against the petitioner. But the statute would seem to he susceptible of the more extended application. The language of the constitution, taken in its broad and popular sense, indicates a right accruing — a sum of money or other thing due or deliverable, by virtue of a contract, expressed between the parties, or implied from their acts and circumstances, or on account of a breach of it in respect to some matter provided for or contemplated by them when it was made — something springing out of the contract, and for the enforcement of which resort must be had to it — and seems not to include damages for those *wrongful*acts which either party may possibly do, and which, when done, áre remotely connected with it, but were not anticipated by them at the time of making of it. The act in question was precisely of this character. The complaint charged the petitioner with the fraudulent and wrongful conversion of securities placed in his hands for a specific purpose, and the jury found him guilty. This was an act not within the scope of the contract, and not contemplated or provided for by either party, or at least by Wood, at the time the securities were given, and constituted, in the eye of the law, a tort or wrong, which was heretofore redressed by an action on the case. The fact that it was coincident with an implied undertaking on the part of the petitioner not to convert the securities, did not relieve, but aggravated its character as a wrong. There are a great variety of torts connected with contracts, which, when they involve a violation of confidence, increase the moral guilt of the perpetrator. As was observed by the court in *Suydam vs. Smith, “*The man who wrongfully converts to his own use, the property which another has intrusted to his care, is chargeable with a deeper shade of moral guilt, than the one who converts property which he has either found or tortiously taken; for in addition to the wrongful appropriation of another man’s goods, which is common to all the cases, the bailee is guilty of a breach of trust.” The conversion was an unauthorized act, and *Wood’s*claim for damages, will, when analyzed, be found not to have rested upon the contract at all. It was *58founded upon Ms prior right of property, and tire interference of title petitioner in a particular over wMcli the contract gave liim no control. It existed, therefore, independently of the contract, and although the contract was set forth in the complaint, it was as inducement merely to the subsequent allegations of the wrong, which constituted the *gravamen*of the action.

As to the return of the execution against property, we think it was sufficient to authorize the issuing of one against the person. The sheriff may not have a very wide discretion in determining the value of property upon which he is to levy, but when he honestly thinks it will not pay the expense of sale, and will, therefore, increase instead of diminishing the amount of the judgment, we think it clear that he may, at his peril, refuse to levy, and stating the facts, return the execution unsatisfied. If it should turn out that he is mistaken, or if he acts in bad faith, he undoubtedly becomes liable to the injured party. Such a case would present a very different question from that now before us. *No*attempt was made to impeach the *return, by*showing that the sheriff was mistaken, nor that he acted unfairly, and until that is done, the presumption is in favor of its correctness.

For these reasons, the order of the circuit judge, remanding the petitioner, is affirmed with costs.