7 Blackf. 295 | Ind. | 1844
— Trespass. The declaration contains two counts. The first is for breaking and entering the plaintiff’s close; the second, for taking and carrying away his goods. The defendant pleaded the general issue; and two special pleas, one to each count. The plea to the first .count states -thá't on, &c., one Seibert obtained a judgment against the
The main point relied on in support of the judgment of the Circuit Court is, that, from the facts stated in the replication, the action should have been case and not trespass, and that the replication is, therefore, a departure from the matter set out in the declaration. This position we think is not tenable. The defendant does not stand in the situation of one who, maliciously and unduly, procures a writ to be issued against the goods or person of another, and afterwards has no personal concern in its execution. If this were all he did, there would be force in the defendant’s objection. Elsee v. Smith, 2 Chitt. R. 304.—Lair v. Abrams, 5 Blackf. 191.—Tuell v. Wrink et al., 6 Blackf. 249. But where a person procures irregular process to issue, and is also personally concerned in its execution, the case is different. The writ being void as to him affords him no protection, and he is a trespasser.
Trespass is the appropriate remedy for an act done under a judgment that has been set aside for irregularity. Philips v. Biron et al. 1 Str. 509. By analogy, an act done under a judgment that has been satisfied, by a party having knowledge of the fact, would be a trespass. The case of M'Guinty v. Herrick, 5 Wend. 240, is in point; and the case of Brown v. Feeler, 7 id. 301, in which it was held that an ac
— The judgment is reversed with costs. Cause remanded, &c.