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Hyatt v. Robinson and others.

Trespass will not lie against an officer for executing pro- IN BANK, cess regular on its face." Luddington v. Peck, 2 Conn. Rep.

700.

"It is the duty of an officer to execute all process in his hands, which appear, on their face, to have been issued by ' competent authority and with regularity.". Watson v. Watson, 9 Conn. Rep. 140.

"A ministerial officer is protected in the execution of process from a court of limited or general jurisdiction, although such court has not, in fact, jurisdiction in the case, provided 'such process, on its face, shows the court had jurisdiction of 'the subject matter, and the officer was not apprized to the contrary." Savascool v. Boughton, 5. Wend. Rep. 170. "It is the duty of a sheriff to levy an execution regular on' its face." Parmelee v. Hitchcock, 12 Wend. 96.

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"A ministerial officer, who executes the process of a court having jurisdiction of the subject matter and the power to is'sue process, is protected in the execution thereof, if the pro

cess be regular on its face and, apparently, within the juris'diction of the court." Parker v. Walrod, 16 Wend. Rep. 514.

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Erroneous process is a justification to a sheriff for imprisoning the defendant under it for a sheriff is not the judge of the legality of it. Jaques v. Cesar, 2 Saund. 101, y. n. 2; Pickard v. Bills & Knap, Wright's Rep. 344.

"In trespass against a constable, irregular process from a ' court having jurisdiction of the person and subject is a justi'fication, although the preliminary steps to the process (the 'affidavit,) are irregular. Taylor v. Alexander et al., 6 Ohio Rep. 147,- per Cur.

"An attachment issued without an affidavit, is a justification to the constable who executes it." Bogan v. Stoutenbaugh, 7 Ohio Rep. 134, pt. II.

These cases show that the sheriff was not guilty of trespass when he arrested Lewis Robinson. If he were guilty, the Court who ordered the writ, and the clerk who issued it, were equally

Dec. Term, 1846.

Dec. Term,

1846.

Hyatt v. Robinson and others.

IN BANK, guilty; and if the jurisdiction protected the court, it will, also, those who act under its authority. The writ, on its face, showed the order of court and the affidavit on which the order was made.

"As long as an execution founded on a judgment exist, it 'protects those who act under it; and if the execution be set ' aside for irregularity, no action will lie against the officer who ' acted under it during its existence. The setting aside the 'execution and judgment, does not make the officer a trespasser by relation." Ives v. Lucas et al., 1 Car. & Payne, 7 Eng. Com. Law Rep. 298, vol. 11.

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"Before an act can be a trespass ab initio, or by relation, the act making it such, must be a trespass." Waterly v. Lockwood, 4 Day's Rep. 257.

The Court will observe, that this case differs from those in which the bond is, in its terms and conditions, in violation of or against some statute or principle of law-therefore void. Here, the bond and its terms, condition and form of execution are all agreeably and in conformity to the statute, and the defence is founded on matter dehors the bond entirely. This defence being entirely technical, and upon the strict principles of law, has been met with such principles.

As to merits, the defendants certainly have none. The defendant, Lewis Robinson, was arrested to obtain payment of a debt and judgment justly due by him; when, instead of paying it, as we say he was able to do, and to prevent which, he and his brothers, in point of fact, voluntarily enter into this bond, the terms of which were willfully violated. They had all the benefit of the bond, after obtaining which, they seek to avoid it by complaining of the arrest as illegal. If it was illegal, why ratify and confirm it by giving the bond, when the most speedy and certain remedy of habeas corpus was open to them. The defence made to this bond, I therefore say, cannot be sustained, either upon the principles of law or justice; and we ask judgment thereon for the amount of debt, interest and costs of the original judgment.

Hyatt v. Robinson and others.

C. C. Converse, for Defendants.

First: That nil debit is a good plea in an action of debt on prison bounds bond-the right of action not arising directly out of the bond, but springing from the escape of the debtor charged in execution, is shown by the following authorities: Minton v. Woodworth and Ferris, 11 Johns. Rep. 475, which is a decision upon the precise point. The case of Lamboon v. Bowen, Tappan's Rep. 290, shows that the same rule obtains in the practice of Ohio. See, also, 10 Maine Rep. 470, per Sprague, arguendo,

Second: The bond must be in

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a sum neither more nor

less-but precisely double the sum for which the party charged in execution stands committed. The second section of the "act regulating prison bounds," (Swan's Stat. 735,) declares that the bond shall be in double the sum for which the prisoner stands committed." The strict rigor with which these bonds, which are the outer walls of an enlarged prison, are regarded by this Court, is shown by the case of Lytle v. Davis, 2 Ohio Rep. 277, which holds the bond void, where it recites only that the debtor "was arrested and in custody," upon execution, and does not state, in the precise language of the statute, that the debtor was "imprisoned."

The cases from Massachusetts Reports cited by plaintiff's counsel to sustain the bond, expressly declare that it is void as a statutory bond; but hold that it may be treated as a common law instrument, and presented in that aspect, sustain a recovery. See, also, Whitehead v. Varnum, 14 Pick. 523. Now, the plaintiff does not sue as upon a common law instrument; his declaration counts as upon a statutory bond, and seeks a recovery upon it in that character alone. The demurrer, therefore, as to the third and fourth pleas of the sureties, is not well taken.

Third: The fifth and eighth joint pleas of the two defendants, Aaron and Isaac Robinson, depend upon the question whether a ca. sa., issued without a compliance with the prelim

IN BANK.

Dec. Term,

1846.

Hyatt v. Robinson and others.

Dec. Term, 1846.

IN BANK. inary requisitions of the "act to abolish imprisonment for debt," is void, or voidable only. If void, then the arrest and imprisonment of the other defendant, Lewis Robinson, the principal in the bond, was illegal, and the bond exacted from him and his sureties to obtain his discharge, was void - void as to him, by reason of the duress that extorted it; and if void as to him, void also as to his sureties, whose liability is not in chief, but incidental only to that of their principal.

The first section of the "act to abolish imprisonment for debt," is as follows: "That no person shall be arrested, or im'prisoned, on any mesne, or final writ or process, issuing out ' of any court of law, or equity, in any suit, action or proceeding, instituted for the recovery of any debt due on any con

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tract, promise or agreement, or for the recovery of damages for the nonperformance of any contract, promise or agree'ment, or for the recovery of damages in any action of tres'pass, or on any judgment or decree founded upon any such

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contract, promise or agreement, or damages for the nonper'formance thereof, or on any judgment in (an) action of tres'pass, or for consequential damages, except in cases hereinafter specified." Swan's Stat. 646.

The third section provides for the issuing of a capias ad respondendum upon the affidavit of the creditor, his authorized agent, or attorney, charging the existence of any one or more of the five causes of arrest therein enumerated.

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The fourth section provides, that " on any judgment or de'cree, the court, when in session, or any judge thereof in vacation, may order a ca. sa. to be issued against the judg'ment debtor on the application of the judgment creditor, 'or his lawful attorney, if such court or judge shall be satisfied, by the affidavit of such applicant and such other testimony as he shall present, of the existence of either of the following particulars:" And then follows an enumeration of the five causes of arrest, one or more of which must be charged in the affidavit of the judgment creditor, and established by that and other testimony to the satisfaction of the court or judge, to warrant the order awarding the ca. sa.;

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Hyatt v. Robinson and others.

Dec. Term, 1846.

Swan's Stat. 641. The amendatory act of March 16, 1839, IN BANK. gives "three additional causes of arrest to those mentioned in the act to which it is an amendment;" Swan's Stat. 649. The legal effect of the two statutes, taken together, is now the same as if the three additional causes were inserted in the fourth and fifth sections of the original act.

The ca. sa. upon which the defendant, Lewis Robinson, the principal, was arrested and imprisoned, and to procure whose enlargement the bond in suit was given, was issued upon the affidavit of the plaintiff alone, without any other testimony. For this reason, it is contended that the bond is void, there being no such compliance with the statute as to authorize the issuing of a ca. sa.

In the case of Griswold v. Sedgwick et al., 6 Cowen, 456, it is decided that if process, on the face of it, do not authorize the arrest, then it is irregular and void, and can afford no justification to any of the parties concerned in the issuing, or execution of it. In such case, it is not necessary that the process should be set aside before an action can be sustained, nor is it material out of what jurisdiction it purports to have been issued.

The class of cases which frequently test writs, as to whether they be void, or only voidable, are actions against sheriffs or other officers, for escapes, or neglect to execute process. If the writ be voidable only, then the officer is not liable, as it is a protection to him until set aside; and, if afterwards set aside, cannot prejudice him for acts done under it, although otherwise as to the party suing it out.

If, however, the writ be void, the officer is not bound to execute it; for a writ void on its face is no protection to him, and he is liable, as a trespasser, for attempting to execute it. The case of Phelps v. Barton, 13 Wendell, 68, was an action against the sheriff, for an escape of one arrested, upon a ca. sa. The question in the case was, whether the writ was authorized by the non-imprisonment act of New York, (identical in its provisions with our present statute,) and the Court held that it was not, and that, therefore, the sheriff was

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