dissented, and delivered the following opinion:—
That the fi. fa. issued on the judgment, which has just been affirmed, in an opinion delivered by myself, was regular and valid, I can have no doubt, and I concur in the judgment of the majority, so far as it goes to sustain that writ; but I dissent from their judgment in sustaining the ca. sa. The error assigned is, that the ca. sa. was erroneously issued, being in contravention of the first section of the act to abolish imprisonment for debt, and to punish fraudulent debtors, passed the 12th July, 1842, and in my judgment this assignment is true. That section of the act, is as follows: “ That from and after the passage of this act, no person shall be arrested,' or imprisoned, on any civil- process, issuing out of any court of this Commonwealth, in any suit or proceeding, instituted for the recovery of any money due, upon any judgment or decree founded upon contract, express or implied, or for the recovery of any damages for the non-performance of any contract; excepting in proceedings, as for contempt, to enforce civil remedies, action for fines or penalties, or on promises to marry, on moneys collected by any public officer, or for any misconduct or neglect in office, or in any professional employment; in which cases, the remedies shall remain as heretofore.”
Now, although we have not the plaintiffs declaration before us, yet we learn from the paper-books, on both sides, that this was an action of assumpsit, for the recovery of money alleged to have been collected by Wills & Coyle, as partners in the profession of law.' The judgment in this action, then, was founded upon contract, express or implied, and on such a judgment, “no person,” says the act, “shall be arrested or imprisoned, on any civil process.” A capias ad satisfaciendum issues for no other purpose, than to arrest and imprison the defendant, and as the act forbids it on such a judgment as this, it ought to be set aside. But -the argument is, that this case is within the saving clause of the enactment. Let us see. The excepted cases in which such writs may issue, are : 1. In proceedings for contempt, to enforce civil remedies. 2.'Actions for fines or penalties. 3. Actions on promises to marry. 4. Actions for moneys collected by any public officer. 5. Actions for any misconduct or neglect in office. 6. Actions for any misconduct or neglect in any professional employment. In stating the sixth exception, I have given what I suppose to be *65the true reading and construction of the act, and this case, if excepted at all, falls within the sixth exception. But the actions there meant, are not founded in contract at all, but in tort. Professional misfeasance, or non-feasance, is the ground of the action intended to be excepted. A lawyer collects money for his client, and neglects to pay it over. His client may waive the tort, and sue in assumpsit, on the implied promise ; or he may sue in case, and recover damages commensurate with his injury, which may exceed the debt and interest. There are no distinctions in law, more visible and real than this. It is the distinction between actions ex contractu, and actions ex delicto. 'The former is expressly within the protection of the Act of 1842, and the latter is expressly excepted out of its protection; and for good reason, since the one implies moral delinquency, and is on a footing with actions for violated marriage promises, and for malversation in public office; whilst the other, involves merely a breach of a business contract, which circumstances may palliate, or excuse. It is only by confounding these well settled distinctions, that this ca. sa. can be sustained ; and in a question of personal liberty, it seems to me, we ought to be careful not to.confound distinctions, to its prejudice. The Act of 1842, is entitled to a-liberal construction, and the excepted clauses should be strictly construed; but in this case I arrive at the conclusion that this ca. sa. should be set aside, by following the plain letter of the act.
But it is said, Mr. Wills was discharged from the bench-warrant, on the ground that a ca. sa. would lie. Suppose it is true. The mistake of the court, in stating the grounds of their discharge, cannot alter the construction qf the Act of Assembly. The discharge of Mr. Wills from that arrest, may have been right, or wrong. It is not before us, and we are not to review it. But right or Ayrong, it is clear he is not subject under this judgment to the ca. sa., if we allorv the act abolishing imprisonment for debt, to have the operation evidently intended by its framers. There is another ground for setting aside this ca. sa. The defendant in error has not produced the declaration, to show us that this suit and recovery, were for moneys received by the defendants, in a professional employment. He alleges it in the paper-book, it is true; but the record, as exhibited to us, does not prove it, and this probably was the reason, why his counsel expressly declined to argue in favor of this ca. sa. Now I hold, that before a party is entitled to imprison his opponent, by virtue of a judgment recovered against him, the record must show that he is liable to imprisonment. The general rule is, that defendants in civil judgments, are not liable to imprisonment. The presumption, therefore, in the absence of evidence, must be in their favor ; and until the *66contrary is shown, by him who alleges it, we must hold them exempt, for these two reasons; first, that the Act of 1842, properly understood, exempts from imprisonment defendants in actions of assumpsit; and second, that if in such an action, when brought against attorneys for not paying over moneys, the protection of the act cannot be claimed, still the record must show, that the action was founded on professional neglect, or misconduct; and as this does not appear in the showing of the present plaintiff, he is not entitled to the ca. sa., and it should be set aside.
I am authorized to add, that my brother, Knox, concurs in this opinion, so far as it relates to the ca. sa.