Lewis v. Avery

The opinion of the court was delivered by Collamer, J. To one of these executions the only objection seems to be that the town of Windsor is inserted instead of Wood-stoclc, as the place of imprisonment. This is obviously a mere clerical error, which every man must see, on inspection, and it would be extravagant to say that such a matter should render the precept absolutely void, and make all who were concerned in its issue and execution entire trespassers. The officer’s duty on execution is all particularly pointed out by statute, and he therefore needs not a direction of particulars in the precept. By statute he is directed to commit the debtor to the common jail in the county, which he correctly did in this case. There was no common jail in Windsor, and that word may well be treated as surplusage’. It does not become necessary in this case to inquire in relation to the other execution. If the defendants had any legal authority for the imprisonment which the plaintiff shows they committed, it is enough, until the plaintiff shows some excess. The plaintiff has not showed he was ever taken or holden on the other execution alone for any moment, nor has he averred or shown that he was put to any inconvenience thereby, or to any cost or expense to be released from imprisonment thereon. It is therefore of no consequence whether the execution was good or not. The plaintiff’s counsel have very strenuously relied On Adkins vs. Brewer as sustaining a different doctrine. In that case, the officer had taken property on several good executions, and the same property on three void executions, issued by the defendants. He sold the property on all, and paid over the avails to the amount of $162 to the defendants on these void exesutions. Here the excess of the officer’s act beyond his good executions, was obvious, and how much injury the plaintiff had thereby sustained. The court sustained the action for this excess, for that which was done on the void process only. Ch. J. Savage says, “ The sale by the officer after the other executions were satisfied, could not be justi [290] fied except upon the authority of these executions; and as they . 1 . were void, there was no authority, and the defendants were trespassers.” This was only for the excess. In this case, the plaintiff having neither averred or shown any thing done him peculiarly and alone by virtue of the other execution, this execution furnished the defendants a legal justification. Judgment affirmed.