McGuinty v. Herrick

By the Court, Savage, Ch. J. In (he court of common pleas after the testimony was closed, the defendant submitted two points to the court: 1st. That trespass was not. the proper action, but case ; 2d. That the Monty judgment was not a legal subject of set off; that an unsuccessful attempt to set it off was no extinguishment of it; and that the second execution was a justification of the acts complained of, and for which this suit was brought. The first point seems to me to depend upon the second, for though a regular process from a court having jurisdiction of the subject matter will afford a protection to the ministerial officers of the court, yet the party who would wantonly take out an execution upon a judgment which had been paid, and sell the property of the defendant, would be a trespasser, A person acting under regular process of a court having competent jurisdiction is not a trespasser; and if he abuses that process, case lies and not trespass : but an execution issued upon a paid judgment is not regular process. Nor has a justice jurisdiction of the process in such a case ; and were he to issue such an execution without the express direction of the party, he would himself be a trespasser. Percival v. Jones, 3 Johns. Cas. 49. Taylor v. Trask, 7 Cowen, 249. The important question, therefore, is whether the judgment of Monty v. McGuinty was extinguished by the attempt to set it off in the suit of McGuinty v. Herrick? As long as McGuinty, the defendant in the execution, remained a true and faithful prisoner, so long the debt on which he was imprisoned was satisfied, and no further proceeding [244] could be had against him. If he escaped, and remained out Qf p1.jsor)} there was no longer a satisfaction ; then the plaintiffin the execution was at liberty to prosecute the sheriff or lake further execution against the defendant’s property or person, without waiting for him to be discharged on making his affidavit. If the escape was a voluntary escape, he could not again become a prisoner at the plaintiff’s suit without some act done by the plaintiff recognizing him as such, even though he actually returned to prison. It seems to me, therefore, that after a voluntary escape, or a negligent escape, without recaption or voluntary return, the plaintiff .must be remitted to his former rights, as to the mode of proceeding against the defendant. There can be no doubt that ■before execution issued, a judgment may be set off in a suit brought by the defendant against the plaintiff upon contract, and where any legal set off would be a proper defence. And as no objection was made in the court below against the set off for not being between the proper parties, I can see no reason why the judgment was not a proper subject of set off, on the supposition that an escape, such as I have stated, had actually taken place. There are cases shewing that where a subject has been once properly before a jury and passed upon by them, that is an end of it. In Brockway v. Kinney, 2 Johns. R, 210, on certiorari, the plaintiff in the court below declared for work and labor; the defendant pleaded, that the plaintiff had before sued him for the same matter and recovered. On trial, the fact appeared to be, that in the former suit the plaintiff had declared on a note and for the same work and labor, and that the jury found a verdict on the note, but not for the work and labor; and in the second suit, the plaintiff recovered for the labor. This court said that the charge went to the jury on the first trial and took its chance; the verdict must be considered conclusive between the same parties in regard to the same matter. The plaintiff on the first trial might have withdrawn the charge, but not having done so, it was the duty of the jury to pass upon it; and the judgment •was reversed. The case of Curtis v. Groat, 6 Johns. R. 168, also came up on certiorari. An action of trespass was [245] brought by Groat against Curtis for cutting his wood and making it into coal. The defendant put in a claim for the value of the coal which was still on the plaintiff’s land; the plaintiff recovered after the claims for the trespass and for the coal were fully submitted to the jury. Curtis afterwards sued for the coal, and the defendant prevailed. This court affirmed the judgment, saying it is sufficient in this case that the demand for the coal had been once submitted to a jury when the plaintiff was sued for cutting the timber, and that the jury passed upon this claim. In Bull v. Hopkins, 7 Johns. R, 22, a set off had been presented and rejected by a jury, and the party presenting it was allowed to recover it in a second suit, it appearing by the justice’s return that the set off so rejected was a demand not then due, and therefore could not legally have been set off at the first trial. The same point was decided in the same way in Wolfe v. Washburn, 6 Cowen, 262. There, rent not yet due xvas set off by the jury ; and Woodworth, justice, in giving the opinion of the court says, an allowance to a party by way of set off, is always founded on an existing demand in prmenti, and not one that may be claimed in futuro. There is no discrepancy in these decisions; and the result is, that if a party to a suit, either plaintiff or defendant, presents a demand which is legal, and proper to be allowed if supported by sufficient testimony, and the jury pass upon it, and disallow it, such demand cannot be recovered in another suit. The error of the jury may be ground for granting a new trial when brought up on a case, or for reserving the judgment when brought up on certiorari, but not liable to be reviewed collaterally. The verdict is conclusive, unless it appears that the claim rejected by them could not legally have been allowed. It does not appear that the claim attempted to be set off in this instance could not have been legally set off’. It does appear that the parties produced proof; the question was submitted to the jury, and they passed upon it. If McGuinly had remained in prison, as he must have sworn the day after the trial, then the right to set off the judgment did not exist at the time when the set off was offered. To take the case out of the operation of the rule, the fact should appear af [246] firmatively that the jury could not legally have allowed the defence. This does not appear. It seems to me, therefore, the judgment must be considered satisfied. No action could have been sustained upon it. If this be so, then it was irregular to take out an execution upon a judgment which was legally satisfied; and the party who directed the issuing and enforcement of if, was a trespasser. It is said that the judgment was a protection till set aside. I know of no power in a justice of the peace to set aside or vacate his own judgments ; that is a power which belongs to courts of record only. The judgment on which the irregular execution issued was regular for aught that appears; but in contemplation of the law it had been satisfied, and of course could not justify the issuing an execution ; there is therefore, nothing to support the execution. The process being regular upon its face, and issued from a court having jurisdiction of the subject matter, the officer who executed it would be protected, and probably the justice who issued it by direction of the party, not knowing that (he judgment had lost its vitality; but the party who acted knowingly must be considered a trespasser. I am of opinion, therefore, that the judgment below be reversed, and a venire de nova be issued by Clinton common pleas.