Dutton v. Tracy

4 Conn. 365 | Conn. | 1822

Hosmer, Ch. J.

From a reasonable construction of the motion for a new trial, it is apparent, that the trespass committed must be deemed the joint act of the defendants. Thomas acted under the specific direction of Tracy; and the justification proceeds on the ground, that the execution was legally served. The levy of the execution against Dutton and others was unlawful; because no legal demand had been made upon it for payment; and because it was superseded.

The law explicitly requires, that the officer shall repair with the execution put into his hands for service, to the debtor’s usual place of abode, and make demand of the debt, as the first step of his proceeding. The object of this enactment, was to give the debtor an opportunity of making payment in prevention of unnecessary cost; and if he could not do this, to confer on him the power of exposing such goods and chattels for raising the money requisite to satisfy the execution, as should be least injurious to him. If there are more debtors than one, the demand must be made on all. This is a matter stricti juris; and it is the privilege of each to pay the debt, and prevent the levy on his property; or if a levy is indispensible, to protect himself from unnecessary damage. A demand of one joint debtor, does not authorize the levy of an execution, on the property of another joint debtor. This would be in contravention of the expression, as well as of the manifest object, of the law, The demand made on the land, to reseise which the execution issued, must be laid out of the question. It was a nugatory act, neither required, nor authorized, by any law, nor countenanced by precedent. The demand which the law renders necessary, is personal; and before the property of Dutton could be levied on, must have been made of him, at his usual abode. If the execution had not been superseded, the levy on Dutton's horses constituted an unwarrantable trespass, and conclusively repels the attempted defence.

But, the execution was legally superseded, by both the writs of error, brought by Dutton and others. The first of them, in anticipation of the judgment, was voidable only, and not void. The writ was signed and allowed by a judge of this court; was brought before a court having jurisdiction of the cause; and was legally served. It is not the insufficiency of the plaintiff's declaration, or the falsity of every fact contained in it, that annuls the supersedeas, which the law implies; but if the writ duly emanates, and is addressed to a court having cognizance of it, it is imperative on all executive officers. Duncombe's case, 1 Mod. Rep. 285. Laroche v. Wasbrough & al. 2 Term Rep. 737. The signature of the judge arrests his proceedings; and it is not at his option, whether he will, or will not, obey a judicial mandate. He cannot enquire into the sufficiency of the writ of error; nor has he authority to exercise any judgment concerning it; but it is his duty to yield a prompt and unhesitating obedience. The contrary would be the assumption of undelegated authority; and the resistance of legal process.

The only important question, however, arises under the second writ of error, which was served anterior to the commencement of the levy of the execution.

A writ of error, brought to review the judgment of a court formed under the statute of forcible entry and detainer, is attended with a supersession of proceeding below; because there exists an equal necessity of staying process under the judgment complained of, in prevention of injustice, as in other cases.

Had a demand on the execution been duly made on Dutton, it would have been a preliminary only to the commencement of the levy, and not the actual commencement; but no demand was made; and the service of a preceding writ of error, in the same case, did not necessarily annul the implication of supersedeas, by virtue of the latter. If a writ abates, by the plaintiff's own act, as where feme sole married after it was brought; (Buller v. Lusitano De Pina, 2 Stra. 885. Jenkins v. Bates, 2 Stra. 1015. Birche v. Triste, 8 East 412.) or if it be obviously for the purpose of delay; (Entwistle & al. v. Shepherd & al. 2 Term Rep. 78. Kempley v. Macauley, 4 Term Rep. 436. Spooner & al. v. Gartland & al. 2 Mau. & Selw. 474. Hawkins v. Snuggs, 2 Mau. & Selw. 476.) it is no supersedeas. But in the case before us, there is no ground for the assertion, derived from any source, that procrastination was the object of either writ. The first abated, not by the act of the plaintiff in error, but by the act of the court, procured by the defendant's plea in abatement. The second was instituted immediately, without the intervention of a day. Nor is any deduction to be made unfavorable to the plaintiff in error, from the promptitude with which the first writ of error was obtained. This proceeding was incorrect; but with a little candour it may be seen to have originated in a similar practice, not unusual in Westminster-Hall. There, it is usual to obtain the allowance of a writ of error, previous to the rendition of judgment; (Gravall v. Stimpson, 1 Bos. & Pul. 478.) and, as was said by Buller, J. (Jaques v. Nixon, 1 Term Rep. 280.) "it happens in almost all cases, that the writ of error is sued out before judgment is actually signed; because, otherwise, execution would issue instantly." To aid this proceeding, and prevent the rapid issuing of execution in frustration of a supposed legal remedy by writ of error, the court of B. R. has decided, that if a writ of error be sued out, and the plaintiff will not sign judgment till after the return of the writ, in order to avoid the effect of it, and then sues out execution, the court will set the execution aside. I have no doubt, that with a view to this practice, and in the hope that it would be acceptable here, the first writ of error was issued, and not with the intention of producing delay.

The other Judges were of the same opinion. Peters, J., however, considered the first writ of error as a nullity; but this brought him to the same result.

New trial not to be granted.