T. Pierson vs. B. Gale and W. J. Johnson, 8 Vt. 509

The opinion of the court was delivered by Redeield, J. The question to be determined here is, howfar final process, sued out alter the judgment had been paid, but not released or discharged of record, and without the concurrence of the creditor, will operate as a justification to those claiming to act under it. An execution issued to enforce the payment of a judgment after it had been once paid, may, no doubt, be a sufficient justification in trespass to the officer and bis assistants. He is never bound to look beyond the process.

If that is regular upon its face, it is sufficient for him and all those who act under him. And unless the payment were entered of record, or the fact made known to the clerk, he clearly could not be made a trespasser on account of the issuing of the execution. But in the present case, the execution had been paid and surrendered to the debtor, as evidence of such payment. The case must be considered the same as if the execution had been released or discharged by the creditor, either upon another or the same paper; and if upon the same, the payment or endorsement erased.

In such case, it could hardly be contended, that the second execution could be any protection to the party. It must be admitted on all hands, that if the satisfaction of the execution appeared of record, the clerk even would be a trespasser for issuing a second execution, and this upon the ground that the second execution would be irregular and void.

But when the payment has not been applied upon the execution, or the execution surrendered to the defendant to be destroyed or kept by him, or some other unequivocal act done to indicate the consent of the parties to treat the execution as satisfied, it might be more in accordance with principle, and certainly with decided cases, to leave the party to his remedy, by. a special action of trespass on the case.

Indeed, so closely do the cases upon this subject tread upon the heels of each other, that it is almost impossible to find any satisfactory and intelligible ground of distinction between trespass and case for acts done under color of process. The same act in different states of the American Union, is declared to be, and not to be a trespass. In Massachusetts, it is held, that if an execution issue before the day on which the party by law is entitled to it, the party suing it out is liable in trespass for all injury sustained by the debtor. — Briggs vs. Wardwell, 10 Mass. R. 356. . And in the case of Blaine vs.

Charles Carter and Donald, 4 Cranch, 323, the court wholly disregard such an ex-cepbon. upon the ground that it should be first set aside by application to the court from which the execution issued. Upon the same ground, the court in Nevv-Hampshire refused to sustain trespass where an execution was issued by a justice of peace against the body of the debtor, in a case where by law no such execution could issue. — (2 N. H. R. 491.) And in Maine, precisely the same point was decided just the reverse. — 5 Greenleaf, 291.

Where the exemption claimed is mere privilege of the party or court or other body, the party can never sustain trespass for an arrest in violation of the privilege, but must resort to his action upon the case. In Wood vs. Kinsman and another, (5 Vt.

R. 588,) it was held that where the debtor was arrested on an execution after having been admitted to the poor debtors’ oath, he could have no remedy by action of trespass and false imprisonment. (The same question has been decided otherwise in Maine and some of the other states.) The distinction then- between cases where trespass will lie, and those where it will not lie, are not very distinctly marked. It is said in the old cases, (Parsons vs.

Lloyd, 3 Wilson’s R. 341 — Barker vs. -and Norwood, do. 376, and cases there cited,) that when the judgment on the writ is irregular, and not merely erroneous, and has been set aside for such irregularity, that all acts done under color of the execution of such judgment or writ, are the same, so far as the party is concerned, as if the judgr ment or execution had never existed. The same distinction has been repeatedly recognized in this state, and is no doubt founded in solid, sound sense. If the act is one of judicial discretion, the court is never liable in any form of action for a mere error of judgment.

If the court is not liable, surely the party should not be for the act of the court. And the officer is never bound to look beyond the face-of the precept or process under which he acts.- If that be regular, it is always sufficient for him and for his assistants. And I apprehend, that although it should afterwards be set aside for some irregularity not apparent on the face of it, the officer and his aids could never become trespassers for any act- done under the process.

It is equally well settled, that whenever the process is regular, and issues from a-court of competent jurisdiction, neither the officer or party are liable in trespass for any mere abuse of the process however groundless or malicious their proceedings may be, but the appropriate remedy is case. — (Watson vs. Watson, 1 Conn. 148.— 1 Chit.

Pl. 188.) For if the execution has been paid ¡p any collateral manner, or perhaps in money, but no application made upon the.execution, and the party sue out a second execution, he is not thereby a trespasser, but the proper remedy is by audita que-rela, or an action on the case. (Luddington vs. Peck, 2 Conn. R. 700, and cases there cited.) The same doctrine is held in the case of Brown vs. Feeter, 7 Wend. 301.

But where the payment appeared of record, no doubt the clerk and the party would be liable in trespass, for here the issuing of an execution would be irregular, and all persons concerned in issuing it are trespassers.

If the application had been once made but fraudulently erased by the party, or if the execution had been paid and surrendered to the debtor as evidence of payment, and then surreptitiously purloined by the party and a second execution sued out, we incline to the opinion that the party must be treated as .a trespasser, the same as if he had sued out the second execution while a satisfaction of the first appeared of record, or while the first execution was in the hands of the debtor, and not returned into the office of the clerk. But as that is not the present case, we do not incline to decide it.

But in the present case the execution was sued out by one of the debtors and a mere stranger, and in no sense can these defendants connect themselves with the process, so as to claim protection under it. They are not the creditors or the agents or attorneys of the creditors, but act wholly without the knowledge and independent of the creditor.

A mere stranger who had resolved upon committing a trespass, might just as well purloin a writ from some attorney’s office and procure the authority signing the writ, to deputize him to serve it, and then claim to have proceeded in the execution of this precept, in which he had no interest directly or indirectly,- and over which he had no control. — (5 Wendell 237.) In Green vs.

Jones, 1 Saunders 300, it is held, that, to a plea of justification under process, it cannot be replied by the plaintiff that defendant did not do che act by virtue of the process, for this is not a traversable or issuable part of the plea. If the party have such process and it issued regularly, all acts done in the apparent execution of it are to be referred to it of course on the ground of legal courtesy, or that charity will put the most favorable construction on a man’s acts. But surely the existence of the process, and themanner of its being prayed out may be put in issue.

In this case it is not true that Lee the creditor, sued out this execution, nor js ¡t true that the defendants or their agents or attorneys, or as assignees of the debt sued out the writ, for the debt was extinguished and not assigned. For this reason then as well as the former, we are satisfied that the execution issued irregularly, and that the defendants have no color of pretence to justify their proceedings under it. The case of Luddington vs. Peck, 2 Conn. 700, and that of Watson vs.

Watson, 9 ib. 140, are certainly very strong cases in favor of defendants; and much stronger than any others tobe found in the books. The latter case is one indeed of very questionable authority, and they are not in point. In neither of those cases was any such want of authority shown in the party attempting to justify as in the present. The case of Turnor vs. Folgate, Raymond 70, referred to by Ch. J. Swift, in the case of Ludding-ton vs. Peck, is one which could not be recognized as law here.

There the creditor after having sued out and levied one execution, sued out a second execution on the same judgment, and levied it upon other goods with a view to double charge theidebtor. In our practice no such thing could happen, unless [through the default of the clerk, for the party is never entitled to two executions of the same or different grades, at the same time,[but botlffare the constant practice in the courts of Great Britain ; and this is the true reason ease was held to be the proper remedy. The judgment of the county court is affirmed.