Brown v. Crowl

5 Wend. 298 | N.Y. Sup. Ct. | 1830

By the Court,

Savage, Ch. J.

It appeared from the evidence, that all the defendants below had directed a new suit be fore the justice, expressly for the purpose of imprisoning tire plaintiff. They had a judgment against him an execution against his property when he was discharged. A new judgment could not be desired for any other purpose íhan to imprison him, and the evidence is that the new suit was brought for that purpose alone. It is clear, therefore, that if an action lies at all, it lies against all. In this ¡respect this case is not like Percival v. Jones, 2 Johns. Cas. 51, and Taylor v. Trask, 7 Cowen, 249. In those cases the justice issued such execution as he thought proper, without any special direction from the party; but here, the very object of the suit was to obtain execution against the person, and that point was discussed at the trial.

The only question then is, whether the second judgment was a protection to the parties 1 It was valid until reversed, although erroneous. The justice had jurisdiction of the cause and of the person, and in admitting or excluding any defence which affected the plaintiffs’ remedies, he acted judicially. The defendant before the justice had a perfect remedy either by appeal or certiorari. In this respect this case differs essentially from those referred to. Here the question was agitoted in court and judicially decided; in those cases, the right to an execution was not a question judicially acted on by the justice. In issuing executions, where the defendant was exempted from imprisonment, the justice acted ministerially; the grounds of that exemption were to be shewn to the justice after the judgment was entered, and formed no part of the res gestee in the suit. In such cases the defendant had no other remedy; no appeal or certiorari would He because the justice entered a general judgment which could have been in no other form. The case of Delvin v. Churra, referred to by the defendant’s counsel, was decided in August, 1823, on the same principle. The act of 1819, sess. 42, p. 118, had provided that no householder, not being a freeholder, should be imprisoned fora debt under $>10, provided he shewed at the time of rendering judgment that he was within the provisions of the act. When judgment was recovered against Delvin before the justice, he attempted by his counsel to avail himself of this provision, and though he did not produce the proof required by the statute, it appeared that he was prevented from doing so by some management on behalf of the plaintiff. The justice thought the claim to exemption was not in season, though made, before the execution was filled up. This is my recollection of that case, which may be imperfect, having been decided several years since. At all events, it must have been decided upon the ground that the judgment was regular and the execution irregular, upon the same principle which governed the decision in Percival v. Jones ; and the action was held to lie against the plaintiff before the justice, because he was active in taking out the execution and imprisoning the defendant, with knowledge of the irregularity. This case seems to me to be entirely different, and to depend upon a different principle; here the liability of the defendant’s imprisonment was the point be» fore the justice; it was judicially decided by him, though erroneously ; but the error should have been corrected, either by appeal or certiorari, according to the circumstances of the case.

I am of opinion, therefore, that the judgement, while unreversed, justified the execution, and that no action lies for false imprisonment.

Judgment reversed.