Bank of Whitehall v. Pettes

The opinion of the court was delivered by Bennett, J. This case comes before the court upon a demurrer to the declaration. The only question presented in argument is, whether the officer was bound to have executed such a process as is set forth in the declaration. If the execution was- void, upon its face, the officer could not justify a commitment of the debtors under it, and ought not to have 400 executed it. The declaration sets forth the judgment as rendered at the June term of the Bennington county court,1839, and avers, that the execution was issued on the 13th of June, 1839, and, by mistake, was dated the 13th of June, 1809. The judgment, as recited in the execution, was of the June term, 1839, and it is averred that within thirty days from the rendition of the judgment the execution was delivered to the officer. No one could have inspected this execution without knowing what the date should have been; and shall this misprison of the clerk render the execution irregular and void ? Though the date, alone, might show the execution to be without life, yet, when the officer looked at the whole execution, all reasonable doubt must have been dissipated. In Laroche v. Wasbrough and Maitland, 2 Term R. 737, after the defendant had been charged in execution, the same was, upon motion, amended, by reducing the sum in damages, a sum too large having been by mistake inserted. In McIntire v. Rowan, 3 Johns. R. 144, an amendment of a ca. sa. was allowed by adding the testatum clause, after the defendant had been committed to prison. In Bissell v. Kip, 5 Johns.' R. 100, it was held that the officer, in an action against him for an escape, could not object that the ca. sa. did not follow the judgment, in its sum in damages. The court say, the mistake in the execution was amendable. So in Cramer v. Van Alstyne, 9 Johns. R. 386, a ca. sa. returnable by mistake out of term time, was not void, but amendable. The same principle was applied to a ca. sa. tested out of term, in Jones v. Cook, 1 Cowen’s R. 309. In Young v. Hosmer, 11 Mass. R. 89, the clerk had, by mistake, inserted a wrong Christian name in the execution, and it was held this could not avail the sheriff in an action against him for taking insufficient bail. The court say: “ this was clearly a misprison of the clerk, in issuing a judicial writ, and, being so, might be amended. See also Lewis v. Avery et al. 8 Vt. R. 289, and Avery v. Lewis et al. 10 Vt. R. 332. The very commendable industry of the counsel for the plaintiff has referred us to many other cases, which have more or less bearing upon the question under consideration ; but those referred to are deemed amply sufficient to justify the position that the mistake in the date of this execution might, upon motion, have been amended after 401 the defendants had been charged in execution. If the testa-tum clause may be added, by way of amendment, most certainly it may be altered according to truth, upon the well known axiom that “ the lesser is comprehended in the greater.” Upon reason and authority, we think the date of this execution, having been the misprison of the clerk, should be amendable. We have something to amend by. This must be upon the ground that the process is not void; and, at most, but voidable. If the process' is absolutely void, it is a mere nullity and no amendment in such case can be made. Bunn v. Thomas et al. 2 Johns. R. 190. Burk v. Barnard, 4 Johns. R. 309. It is well settled that none but a party or privy to the record can take advantage of an error in process. The sheriff cannot, but he is bound to execute erroneous process. It is good until set aside, and this can only be done upon an application of the defendant in the execution. Jones v. Pope, 1 Saund. 39. 2 Saund. R. 101. Bull v. Steward, 1 Wils. R. 255. Bissell v. Kip, 5 Johns. R. 100. So if a sheriff make an arrest, on erroneous process, and suffer an escape, he is liable. The result must be that the officer would have been justified in executing the process set up in the declaration, and it was his duty to have so done; and, for his neglect to do it, the sheriff must be responsible. The judgment of this court, then, is, that the plaintiffs’ declaration is sufficient, and the judgment of the county court is reversed, and judgment for the plaintiffs for the amount of their execution and interest.