Barnes v. Viall

Decision Date01 January 1881
Citation6 F. 661
PartiesBARNES v. VIALL. SAME v. STEERE. SAME v. POTTER.
CourtU.S. District Court — District of Rhode Island

Chas A. Wilson, for plaintiff.

Ervin T. Case, for defendant Viall.

Dexter B. Potter, for self and defendant Steere.

LOWELL C.J.

These three actions of trespass and false imprisonment were submitted to the court without a jury. In July, 1876, the defendant Steere brought an action of trover against the plaintiff Barnes in the supreme court of Rhode Island, and caused him to be arrested on mesne process. The plaintiff gave bail. After several trials a verdict was rendered for Steere for a large amount, and judgment was entered for him upon which execution was issued and returned non est. On the third of December, 1878, Barnes was surrendered by his bail to the defendant Viall, the jailor of the Providence county jail, and two days afterwards Barnes caused a tort citation to be issued to Steere, under chapter 216 of the General Statutes of Rhode Island, requiring him to pay the board of Barnes within ten days, which he did. [1] On the second of January, 1879, Barnes not having been committed on execution in pursuance of section 5, c. 213, of said statutes, required the defendant Viall to discharge him, but agreed to stay until the next morning. Viall, in the meantime, consulted counsel, and saw the clerk of the court. On the morning of January 3d the prisoner was discharged by an entry on the jail-book, giving the cause, and thereupon left the office but was presently arrested by a deputy sheriff upon an alias execution procured on the same day by the defendant Potter, as attorney for Steere, and was recommitted to the custody of the jailor; and on the fifth of January Barnes caused another tort citation to be issued to Steere, in accordance with which the board was again paid; but in consequence, probably, of the form of citation, requiring payment in ten days, there was a lapse or hiatus of a week during which the board was not prepaid. After some weeks the plaintiff petitioned the supreme court for a writ of habeas corpus, but did not prosecute his petition, and filed a second petition March 24th, and on the twenty-seventh of March he was discharged by the court. The reason given in his petition for demanding a discharge was that his board had not been duly paid; but at the hearing the question was raised as to the legality of the arrest. The court gave no written opinion, but are understood to have said that he was certainly entitled to be released for the cause first assigned, and that, therefore, it was not necessary to pronounce upon the other. After his discharge he brought these three actions against the creditor, the attorney, and the jailor

Several questions have been ably presented in the briefs of counsel: Whether the arrest and detention were illegal? whether trespass lies? whether the execution will protect all the defendants until it has been set aside by the court from which it issued? whether it will protect the jailor? whether the plaintiff has waived the irregularity by requiring the defendant Steere to support him in jail? The decisions in actions for false imprisonment, and the kindred but distinct action for malicious prosecution, are very numerous, and we have examined many of them.

The distinctions taken are very nice, and call for a careful examination. By the statute of Rhode Island, if a principal defendant shall be committed to jail by his bail after final judgment, he shall there remain for the space of 30 days; and if not taken in execution within that time, he shall be discharged from jail on payment of the prison fees. Gen. St. c. 213, Secs. 4, 5. [2]

A law or practice requiring a defendant to be charged in execution within a limited time after judgment, if he has been imprisoned on mesne process, or after he is surrendered by his bail upon the judgment, is common to our jurisprudence and that of England. In England it depends upon rules of court, but in most of the United States upon a statute. When the judgment debtor has been thus discharged for this cause, it is held in England that the debt is not released; but the plaintiff cannot lawfully arrest the debtor again upon an execution issued upon the same judgment, nor can he evade that consequence by arresting him upon mesne process in an action on the judgment; but he may again imprison his debtor upon a second judgment. Pullen v. White, 3 Burr. 1448; Russell v. Stewart, 3 Burr. 1787; Blandford v. Foote, Cowp. 72; Smyth v. Jefferys, 6 T.R. 777; Masters v. Edwards, 1 Caines, (T.R.) 515.

It was hardly denied in argument that the statute of Rhode Island requiring the discharge of the plaintiff was intended to operate at least to prevent another arrest upon the same judgment. It may be that it discharged the plaintiff's body in respect to that debt for all future time. See Hidden v. Saunders, 2 R.I. 391.

The statute does not provide any machinery for the discharge. It simply requires that the principal debtor shall be discharged. If the law were that the court should or might supersede the execution, then it might follow that the court could impose terms, such as that an action should not be brought, as is the law in England and New York; and that until the writ is superseded it is not too late to charge the debtor in execution, as was held in New York and South Carolina. Brantingham's Case, cited in Reynolds v. Corp, 3 Caines, 267; Robertson v. Shannon, 2 Strobh. 419. In the second of these cases is a very learned and interesting history and description of the English practice. From the language of the statute, 'such principal shall be discharged from jail,' and from the action of the jailor, which probably followed the usual practice, it would seem that the discharge is peremptory and purely ministerial, and we so consider it.

We are of opinion, therefore, that the plaintiff was duly discharged from jail, and was not liable to imprisonment again upon a fresh execution.

Does trespass lie for the new taking and detention-- First, against the creditor and the attorney; second, against the jailor? As a mere question upon the form of action, our statute would require this point to be taken by demurrer. Rev. St. Sec. 954. But behind the form lies the substantial question, whether it is necessary to prove malice, which is the gist of the action upon the case. The distinction is that for force directly applied the person using or commanding it is liable in trespass if the act was unjustifiable; but one who is only remotely instrumental in causing the injury is to be sued in case. If a warrant, writ, or order is procured from a judge or judicial officer having jurisdiction of the subject-matter and the parties, upon a true and fair statement of the facts, then, if the writ or order is erroneous, it is the mistake of the court; and, since it is highly inexpedient that a judge should act at the peril of damages, there is no redress. This is so in some cases, even where the judge has not jurisdiction, if he decides that he has it. If, however, the facts are falsely and maliciously stated to the judge, the person guilty of the malice is liable in an action on the case. But if the act is throughout the act of the party, and there is no actual judicial finding, trespass will lie for the injury whether it was committed with or without malice. The only difference is in the damages. In this country, and especially in New England, the writ of execution is not granted by a judge, but issues as matter of course from the clerk's office; and there are many decisions that a justice or clerk who issues such a writ does it ministerially, and not judicially, and therefore is responsible in damages if one is issued contrary to law upon the facts within his knowledge. See Briggs v. Wardwell, 10 Mass. 356; Fisher v. Deans, 107 Mass. 118; Andrews v. Marris, 1 Q.B. 3; Carratt v. Morley, Id. 18; Lewis v. Palmer, 6 Wend. 367.

In this case there was nothing upon the records of the supreme court to instruct the clerk that the plaintiff had been imprisoned for more than thirty days, and therefore he was not wrong in issuing the execution in the form usual in such cases. The authorities are likewise many which hold that when a plaintiff, through his attorney, procures an execution or other writ which issues as of course, and which he has no right to have, both the plaintiff and the attorney are liable in trespass: the plaintiff, because the attorney acts for him in the due course of his employment; and the attorney, because in tort the command of a superior is no defence. Deyo v. Van Valkenburg, 5 Hill, 242; Kerr v. Mount, 28 N.Y. 659; Bates v. Pilling, 6 B. & C. 38; Codrington v. Lloyd, 8 A. & E. 449; Green v. Elgie, 5 Q.B. 114.

The leading case upon this subject is Barker v. Braham, 3 Wils. 368. There the attorney of a creditor caused execution to be issued against the person of an administratrix, when it should have been only against the goods of the intestate in her hands. Trespass was sustained against the attorney and the client. The only difference which has been pointed out between that case and this is that the writ had been set aside before the action was brought. But here the plaintiff was discharged on habeas corpus, and though that was, probably, for a different cause, yet after he was set at liberty he had no occasion to apply for a modification of an execution which had become inoperative as to his person. Besides, this was not a case demanding action by the court. The reason for the rule that an order of court must be vacated before an action will lie, is that the judgment of a court cannot be collaterally impeached; but when a certain sort of writ has come to be issued as a matter of course, ministerially, the reason for...

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