4 Day 222 | Conn. | 1810
The question in this case arises upon the sufficiency of the replication, which is to this effect: that the payment was compelled by a void and unlawful levy of the execution, by direction of Smith, supposing it to be in full life, when it was dead in law, and that the defendant brought an action against the officer for the unlawful levy, and recovered a greater sum in damage.s than the amount of the judgment, on account of such,
When an execution has been discharged by a mistaken or void levy, or by an endorsement made through mistake, the court from whence it issued may, on motion, or application of the judgment creditor, or on a scire facias, order a new execution to be issued. If either of the parties are dead, a scire facias must be brought to obtain a new judgment, to enable the court to issue a new execution. It is no objection to the plaintiff’s right of recovery, that the void or mistaken levy subjected him or the officer to an action of trespass. Where the execution is levied on the estate of a stranger, which is sold, and the money applied in payment of it, though such stranger can maintain an action of trespass against the officer, yet, the levy being by mistake, a new execution can be granted. Where a party directs an officer to do an act apparently legal, and it afterwards turns out that he is subjected to pay damages in an action brought against him for doing that act, the party is bound to indemnify him. It appears that Smith directed the officer to levy the execution; he was, therefore, bound to indemnify him; and the averment that he had indemnified him is sufficient to show that Smith had derived no benefit from such unlawful levy, and has not obtained a satisfaction of the execution.
It is essential, that it should be averred in the replication, that the money paid on the execution was recovered in the action by the defendant against the officer. The allegation is, that the defendant commenced an action of trespass and false imprisonment against the officer for making said levy, and compelled him, by the judgment of the court, to pay a greater sum in damages than the whole amount of said judgment and execution, founded on said levy and compulsory payment. Under this allegation, had it been traversed^it would have been competent» for the plaintiff to show that, in the action of tres-
The allegation that the defendant recovered more than the amount of the former execution, is not apt pleading, and has led, to all the doubt in the case; for it is true, that the defendant might have recovered more than the amount of the execution, and not have recovered that but this must be taken in connection with the averment, founded on said levy and compulsory payment; and then it fairly implies, that the money paid on the execution was part of the judgment recovered by the defendant against the officer in the action of trespass. Suppose the allegation had been that the defendant recovered judgment against the officer for a definite sum exceedingtheamount ofthe former execution, in an action founded on said levy and compulsory payment; it must have been understood, that the recovery included the money compelled to be paid by the levy of the execution. The allegation that the defendant recovered more than the amount of the former execution is substantially the same.
I am, therefore, of opinion, that the judgment of the superior court ought to be affirmed*
As the money was collected in a compulsory way from Sloyel, by the levy of a void execution, it could never be legally holden by Smith. Whether it has been actually recovered back, or not, is immaterial:
Judgment affirmed.