Fletcher v. Mott

Prentiss, J. delivered the opinion of the Court. The objection raised on the demurrer, to the sufficiency of the plaintiff’s declaration, is, that the execution, by virtue of which the judgment debtor was committed to prison, appears to have been issued more than a year and a day after the judgment; and it is insisted, that this irregularity, so appearing, from the declaration, renders the arrest and imprisonment of the debtor unlawful, and, consequently, the bond given for the liberties of the prison-yard void. It is generally true, that if a judgment lies dormant more than a year and a day, there must be a scire facias to revive it: and if, instead of bringing a scire facias or an action of debt upon the judgment, tjie plaintiff sues out an execution, the Court, upon motion, will set it aside, with costs. (2 Wils. 82.— Barnes, 197.) But it has been repeatedly adjudged, and is settled law, that the execution is not void, but is voidable merely, and until it is reversed or set aside, it is a good justification to the sheriff, and also to the party. [10 Vin. Abr. 570. — Patrick vs. Johnson, 3 Lev. 403. — Shirley vs. Wright, l Salk. 273. — Martin vs. Ridge, Barnes, 206. — Jackson vs. Bartlett, 8 Johns. Rep. 365.) The sheriff is bound to execute the writ, and in an action against him for an escape, the irregularity is no defence, for he cannot allege error either in the process or judgment, as an excuse for an escape. [Bull vs. Steward, 1 Wils. 255. — Ognel vs. Paston, Cro. Eliz. 165. — Burton vs. Eyre, Cro. Jac. 288. — Prigg. vs. Adams, 2 Salk. 674. — 2 Saund. 101, y. n. 2. — Scott vs. Shaw, 13 Johns. R. 378. — Cobb vs. Cooper, 15 Johns. R. 152.] In Bissell vs. Kip, 5 Johns. R. 89, Nent, Ch. J. says, “the rule appears to be well settled, by a uniform series of decisions, that in all cases where [341] the execution is not void, but only avoidable and erroneous, the sheriff who is sued for an escape, cannot take advantage of error in the process, to deliver himself from the action for the escape. Asa Aldis and John Davis, for the plaintiff S. S. Brown, for the defendants. The erroneous process is a sufficient warrant for him; he cannot take advantage of the defect in a collateral action ; the process stands good until the party avoids it by error.” In an action by the judgment creditor against the present plaintiff, the sheriff, for the escape, it is clear that the plaintiff could not object to the regularity of the execution; and it is equally as clear, that the debtor having submitted to the execution without objection, and executed the bond declared on to the plaintiff for his indemnity, neither the debtor nor his bail can now take advantage of the irregularity in this action. That bail cannot take advantage of any such irregularity, is a principle well established. [Campbell vs. Cumming et al. 2 Burr. 1187. — Gillespie vs. White, 16 Johns. Rep. 117.] Nor can the party himself impeach the execution by plea, or avail himself of the irregularity in any collateral action. His remedy is by application to the court by motion, or by error; or, perhaps, by an audita querela ; and until the execution is set aside, or avoided in one of these ways, it is good and valid. But an execution issued more than a year and a day after the judgment, is not in all cases even voidable, but in many cases is perfectly regular, and cannot be avoided by any proceeding for that cause. If the plaintiff have judgment with a cessit executio, or stay of execution for a year, or if the defendant bring a writ of errors and thereby hinder the plaintiff from taking out execution within the year, and the judgment be affirmed, the plaintiff in error nonsuited, or the writ of error abated or discontinued ; or if the defendant delay the cause by injunction out of chancery ; in any of these cases, the plaintiff may proceed to execution after the year, without a scire Jadas. [Booth vs. Booth, 6 Mod. 288. — Goodwin vs. Grudge, Cro. Eliz. 416. — Bellasis vs. Hanford, Cro. Jac. 364.-2 Tidd's Pr. 1116.— Michell vs. Coe, et ux. 1 Burr. 660.] Some of these causes may have prevented the issuing of the execution, within the year, in this case; and if so, the execution was neither erroneous nor voidable. As we cannot presume that no such cause existed, it must be intended, on demurrer to the declaration, that the execution was regularly issued. Admitting, therefore, the irregularity, if any existed, to be a defence to the action, it must at all events have been pleaded, and set forth in such form, as to give the plaintiff an opportunity to reply the cause of delay, and show the execution regular. In every view of the case, the declaration is sufficient, and the plaintiff is entitled to judgment. Judgment for the plaintiff. Rovce, J. having been of counsel, did not sit in the cause.