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, §§ 4, 5.*

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 exe cution 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.

*GENERAL STATUTES OF RHODE ISLAND, c. 213, § 5.

If the principal be not taken in execution within 30 days after final judgment against him when committed for want of bail, or when committed by his bail, or by the court to which his bail shall have surrendered him before such final judgment, or within 30 days after he shall have been committed by his bail, or by the court to which his bail shall have surrendered him, pending scire facias against his bail, such principal shall be discharged from jail upon payment of prison fees.

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. § 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 subjectmatter 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 responsi ble 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.

cases.

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 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 the rule ceases. It was often said, formerly, that a writ or order after it had been set aside was a nullity from the beginning, and the party could not justify under it, because, when he appealed to the record, there was no such record remaining. But this notion is entirely exploded. The court will inquire why the writ or order was set aside, and if for error of the judge no action lies. Williams v. Smith, 14 C. B. (N. S.) 596; Smith v. Sydney, L. R. 5 Q. B. 203.

So, in the converse case, if the error was not that of the judge or court, but a mistake of the party, then an action lies immediately. This is a question of fact; and it was the fact in this case that the writ issued as of course. The point is a vital one, undoubtedly; and it may be that the plaintiff, having been driven to his petition for habeas corpus, might have been required by the supreme court to stipulate not to bring an action. We doubt whether the court has a discretion to that extent, but do not decide the point. If they could have made such an order they did not.

A single execution in Rhode Island contains all three of the old writs, just as in Massachusetts, 70 years since, Parsons, C. J., said: "By our statute we have but one form of execution, which includes a capias ad satisfaciendum, a levari facias as to the money of the debtor, and an extendi facias as to his lands." The statute requires that when the body is exempt the capias shall be struck out. Gen. St. c. 211, §§ 13, 15, 18. It was the duty of the attorney to see that

this was done. If the execution had been issued a few hours earlier, it would have been regular, and then the arrest after 30 days would have been bad; and we do not wish to be understood that the responsibility of the attorney and client would have been at all different in this state of facts.

The following cases will be found applicable to some or all of the points heretofore discussed. In many of them the writ was not set aside; in others it was; but, for reasons already given, this was unnecessary in the present case. Where a justice of the peace, having jurisdiction, had rendered a valid judgment, but had issued execution within 24 hours thereafter, his second act was ministerial and void, and he was liable in trespass. Briggs v. Wardwell, 10 Mass. 356. Execution similarly issued from a court of record is void, and a levy under it conveys no title. Penniman v. Cole, 8 Met. 496. Where judgment creditors had, through their attorney, taken out execution when an appeal was pending to the court from the clerk's taxation of costs, they were liable in trespass. Winslow v. Hathaway, 1 Pick. 211. Where an execution, afterwards set aside for irregularity, was levied on the plaintiff's goods, it was held that the cause of action arose at the time of the levy. Read v. Markle, 3 John. 523. Where a debtor was in prison on execution, an extendi facias taken out by the creditor was merely void, and might be collaterally impeached. Kennedy v. Duncklee, 1 Gray, 65. So where the debtor had been discharged from imprisonment with the creditor's consent. King v. Goodwin, 16 Mass. 63. Where a statute prohibited arrests before execution for a debt of £20 or less, but gave the judge power to authorize it under certain circumstances, trespass was maintained without setting aside the capias. Brooks v. Hodgkinson, 4 H. & N. 712.

It is commonly said that such writs are void, and, if the case turned upon that, we might probably hold that the execution, in as far as it was a capias, was void. But that expression is not a very happy one, because it was not void upon its face, and would undoubtedly protect the sheriff who acted under it. It is void, upon the weight of authority, as a defence to the party who wrongly procured it.