5 Wend. 240 | N.Y. Sup. Ct. | 1830
By the Court,
In (he court of common pleas after the testimony was closed, the defendant submitted two points to the court: 1st. That trespass was not. the proper action, but case ; 2d. That the Monty judgment was not a legal subject of set off; that an unsuccessful attempt to set it off was no extinguishment of it; and that the second execution was a justification of the acts complained of, and for which this suit was brought.
The first point seems to me to depend upon the second, for though a regular process from a court having jurisdiction of the subject matter will afford a protection to the ministerial officers of the court, yet the party who would wantonly take out an execution upon a judgment which had been paid, and sell the property of the defendant, would be a trespasser, A person acting under regular process of a court having competent jurisdiction is not a trespasser; and if he abuses that process, case lies and not trespass : but an execution issued upon a paid judgment is not regular process. Nor has a justice jurisdiction of the process in such a case ; and were he to issue such an execution without the express direction of the party, he would himself be a trespasser. Percival v. Jones, 3 Johns. Cas. 49. Taylor v. Trask, 7 Cowen, 249. The important question, therefore, is whether the judgment of Monty v. McGuinty was extinguished by the attempt to set it off in the suit of McGuinty v. Herrick?
As long as McGuinty, the defendant in the execution, remained a true and faithful prisoner, so long the debt on which he was imprisoned was satisfied, and no further proceeding
There are cases shewing that where a subject has been once properly before a jury and passed upon by them, that is an end of it. In Brockway v. Kinney, 2 Johns. R, 210, on certiorari, the plaintiff in the court below declared for work and labor; the defendant pleaded, that the plaintiff had before sued him for the same matter and recovered. On trial, the fact appeared to be, that in the former suit the plaintiff had declared on a note and for the same work and labor, and that the jury found a verdict on the note, but not for the work and labor; and in the second suit, the plaintiff recovered for the labor. This court said that the charge went to the jury on the first trial and took its chance; the verdict must be considered conclusive between the same parties in regard to the same matter. The plaintiff on the first trial might have withdrawn the charge, but not having done so, it was the duty of the jury to pass upon it; and the judgment •was reversed. The case of Curtis v. Groat, 6 Johns. R. 168, also came up on certiorari. An action of trespass was
It does not appear that the claim attempted to be set off in this instance could not have been legally set off’. It does appear that the parties produced proof; the question was submitted to the jury, and they passed upon it. If McGuinly had remained in prison, as he must have sworn the day after the trial, then the right to set off the judgment did not exist at the time when the set off was offered. To take the case out of the operation of the rule, the fact should appear af
It is said that the judgment was a protection till set aside. I know of no power in a justice of the peace to set aside or vacate his own judgments ; that is a power which belongs to courts of record only. The judgment on which the irregular execution issued was regular for aught that appears; but in contemplation of the law it had been satisfied, and of course could not justify the issuing an execution ; there is therefore, nothing to support the execution. The process being regular upon its face, and issued from a court having jurisdiction of the subject matter, the officer who executed it would be protected, and probably the justice who issued it by direction of the party, not knowing that (he judgment had lost its vitality; but the party who acted knowingly must be considered a trespasser.
I am of opinion, therefore, that the judgment below be reversed, and a venire de nova be issued by Clinton common pleas.