Taylor v. Trask

Curia, per Sutherland, J. The proviso in question is as follows: “ That no execution of any judgment given by virtue of this act, when the sum, exclusive of costs, exceeds 25 dollars, shall issue, (unless by consent of the parties,) against any freeholder, or inhabitant having a family, in less than ninety days after such judgment is rendered, unless the party in whose favor the judgment is rendered, shall forthwith, upon the rendering of the judgment, make it appear by his own oath, or the oath of some other person, or both, in the discretion of the justice, that such party will be in danger of losing the debt or damages, if such delay be allowed; in which case, the justice shall issue execution immediately, against the goods and chattels only of the defendant, &c.” Here the duty of the justice is clearly and explicitly pointed out. He is expressly prohibited from issuing an execution against the body of a defendant, in the cases enumerated in the proviso. He had no jurisdiction to award the process which was issued in this case. It was not demanded from him by the defendant. He made the oath required by law, and requested an execution ; that is, such execution as the law entitled him to, with respect to which, there was no doubt or uncertainty. The case, therefore, stands precisely as it would have done, if the defendant had, in terms, requested the justice to issue an execution against the goods and chattels of Taylor only. In such a case, I apprehend, the party would not be responsible for the accidental or intentional error of the magistrate. In Percival v. Jones, (2 John. Cas. 49,) the defendant, (who was the justice,) had issued an execution against the body of the plaintiff, who was an inhabitant of the county of Albany, having a family, and as such exempted from imprisonment. There was no evidence that the execution had been demanded by the plaintiff, in the judgment. The court held that under such circumstances the magistrate was responsible for the illegal imprisonment; *and not the [251] plaintiff in the execution. They remark, that while the r , , . ’ , ... justice acts ministerially, or as a clerk of the party, he will be justified in issuing any process within his jurisdiction that may be demanded by the plaintiff. But in order to charge the plaintiff in the suit, it should appear that it was really his act. It ought not to depend on the general intendment of the law, that every writ or process is purchased by the party in whose favor it issues. If it appear to be the officious or voluntary act of the justice, without any direct authority for that purpose, an innocent plaintiff ought not to be implicated. In such a case, the justice assumes the responsibility of the measure, and is liable for all its consequences. There is no doubt of the correctness of the general proposition, that the party becomes a trespasser who extends the power of a court of special and limited jurisdiction, to a case in which it cannot lawfully be exercised. (1 Strange, 710; 2 Bl. Rep. 1035; Cowp. 640, 647; 2 Wils. 385.) But this is not a case of that description. The defendant has done nothing which he had not a right to do. He requested the magistrate to issue an execution in a case, in which the law clearly points out” the kind of execution to be issued. No doubt existed upon any matter of fact, which was necessary to be removed by the party before the magistrate could know what execution to issue. In issuing an execution of a different character, therefore, he must be considered as acting officiously and voluntarily, and not as the agent of the party. He ought to be responsible, and not the plaintiff in the execution. The relation subsisting between a plaintiff and a justice’s judgment and the justice himself, is very different from, that between client and attorney in courts of record. The attorney is the mere agent of the client. The client is responsible for all the acts of his attorney which affect third persons, whether they were authorized by him or not. He is not, from considerations of public policy, permitted to deny his authority. {Denton v. Noyes, 6 John. 296, and cases there cited. Id. 37; 3 Wils. 345; Dougl. 676.) But the case of Percival v. Jones decides, that if a magistrate [252] issues *an execution without its being demanded by the plaintiff in the judgment, the latter is not, responsible for it.. it is considered the act of the justice only. Ue is not a mere clerk or agent, therefore, in issuing process, in all cases. Whether be is so to be considered or not, depends on the circumstances of the case. In .Curry v. Pringle, (11 John. 444,) the warrant was issued by the direction of the defendant, who also instructed the officer as to its execution. It was the process which he asked for, and he took it at his peril. Judgment for the defendant.