3 Cai. Cas. 267 | N.Y. Sup. Ct. | 1805
There are several questions arising upon this case. 1. Whether trespass will lie at all, for suing out execution against a defendant who has been discharged, from custody by supersedeas, for want of being charged in execution l If it will, then whether the plaintiff can sue, so long as the award of the execution remains good, and has never been set aside for irregularity ?
1. The statute only says, that aprisoner who is not charged in execution within three months after judgment, may be discharged from custody by supersedeas. The privilege of the prisoner from subsequent imprisonment upon the same judgment, is not founded upon the words of the act, but upon the construction and practice of the courts. 1 Caines, 515. The question is, whether a subsequent ca. sa. is to be deemed absolutely void, or is voidable only. I am inclined to think, that the process is voidable only, and that process will not lie, although, perhaps, a ca. sa. sued out with a knowledge of all the facts, and of the rule of practice, might subject the party to an action on the case, and also expose him to be punished as for a contempt, in abusing the process of the court. In the case before us, the judgment remains valid, and execution may go at any time against the property, and there is nothing upon record to show that the process by ca. sa⅛ is in itself irregular. The general rule is, that false imprisonment
2. But admitting that a trespass would lie, the plaintiff brings his suit prematurely, so long as the ca. sa. appears regular upon the record. He ought first to have applied to the court, and had the writ set aside as irregular; and in the particular case of proceedings, except by certain inferior officers beyond their powers, and whose proceedings are held to be coram non judice, I believe no instance can be found, in which trespass was brought, until application had been made to the court, to determine upon the validity of the process, and to set it aside. Until that be done, the process will be ajustification, and the court will not decide touching its validity in this collateral way. There may be circumstances existing, which might limit the interference of the court, upon the direct application, and induce them to set aside the process upon terms, and those circumstances cannot be examined into, nor the interference modified, in the present suit. Cne of the terms might have been, that no action of trespass should be brought. Such terms have been imposed by this court, on setting aside proceedings, and it is sometimes the practice in the English books. Barnes, 375. I am of opinion, therefore, for these reasons, that the verdict ought to be set aside.
This action ought not to be encouraged. The judgment warranted the execution, and although
Notwithstanding the determination in Masters v. Edwards, which was a departure from principles formerly adopted, we have not yet said, that a party thus aggrieved shall have a remedy by action. We do enough, if as was done in the last case, we set aside the execution. So long as this can be done, either here, or by a judge at chambers, it is not probable we shall have many complaints.
Upon the whole, as the judgment remained in full force, as the act is silent as to the effect of a supersedeas, as the obligation to pay is as great as ever, as the ca. sa. was only voidable, and not void ; but more especially, to preserve a uniformity of decision, I think there ought to be a new trial, with costs, to abide the event of the suit.
The merits of this case are, I think, comprised within a very narrow compass, and the right of the plaintiff to recover in this action, will depend alto
I am inclined to think the execution must be considered voidable only. That this court will relieve a prisoner charged in execution, after a supersedeas has regularly issued to liberate him from imprisonment, for want of being charged in due season, has been settled in the case of Masters v. Edwards, 1 N. Y. T. R. 516. But whether such execution is to be considered void, or voidable, is undetermined. It appears regular upon the face of it; it is warranted by the judgment, and is tobe avoided by some matter dehors the record, and which I think cannot be taken advantage of in this collateral way. A party justifying under the execution, may thus be taken by surprise, and also deprived of the equitable discretion frequently exercised by courts, according to the circumstances of the case, in setting aside executions improperly issued, upon terms, among which, that no suit for false imprisonment shall be brought, is often made a condition of the rule.
I think there are cases somewhat analagous to the present, when the process has been deemed voidable. Thus, if an execution be issued on a judgment that has lain dormant for a year and a day, it is deemed voidable only; and until reversed or set aside, is a good justification. 3 Lev. 403. An execution thus issued, is called, in the books, an erroneous process. 1 Salk. 273. And in the case of Parsons v. Loyd, 3 Wils. 345, De Grey, Ch. J. says, there is a great difference between erroneous process, and irregular (that is to say void) process. The first stands valid and good, until reversed ; the latter is an absolute nullity from the beginning. The party may justify under the first until it be reversed, but cannot under the latter.
And in the case of Prigg v. Adams, and others, 2 Salk. 674, an officer justified under an execution on ajudg
The result of my opinion, therefore, is, that in the present case the execution issued against the plaintiff was only voidable, and until set aside, affords a good justification. The verdict must, of course, be set aside.
Cowp. 72.