Cutler v. Wadsworth

Hosmer, Ch. J. In this case the court charged the jury* that the execution mentioned in the plaintiff’s declaration was void, and of consequence, that the defendant was under no legal obligation to serve it; and the question now to be determined, is, whether the charge to the jury was correct. By the clerk of the superior court, an execution was issued, in common form, counting on a judgment of the court aforesaid, held on the fourth Tuesday oí February, 1827. A judgment between the same parties was rendered, by the superior court, at the term assigned by law, on the second Tuesday of said February; on which day the court commenced its session, and continued it uninterruptedly until after the fourth Tuesday of the same month. The judgment in fact was rendered on the I7th day of said February, ten days before the fourth Tuesday; and no judgment was ever given in the aforesaid month of February, in favour of the plaintiff, and against the execution debtor, except the one before-mentioned ; nor was there any superior court held at Hartford in the above month, but the one of the second Tuesday of February, It is the necessary result from these facts, that the judgment counted on in the execution, never existed. There was no record imparting authority to the clerk to issue the execution in question, although he was authorized to grant one upon the judgment rendered on the second Tuesday of February. It is very apparent, that this officer committed an error, no doubt through mistake, and not intentionally. What, then, was the legal character of the plaintiff’s execution? This well known process is aptly devised to put the recorded sentence of the law in force ; for where there is no such sentence, there is nothing to be executed. The clerk of a court derives his authority to grant execution from a record ; and if there is no record, he is invested with no authority. There was no such term of the superior court as the execution counts upon ; and if there had been, the process would have' been unauthorized, as the only judgment between the parties, was not only rendered at the term of the court held on the second Tuesday of February, but ten days before the fourth Tuesday, on which the rendition of the judgment was affirmed in the execution to have been made. [10] To avoid the force of these considerations, the plaintiff’s counsel has observed, that the description of a court as commencing its term on a certain day, and making this and all the successive days of the term, one law day, is a fiction ; and that for the attainment of justice, this fiction may be contradicted. The above principle, if rightly understood, is unquestionable. The day on which any act is done within the term of a court, may be shewn, when justice requires it, upon the common maxim, In fictione juris semper eocistit esquitas. But what has the principle thus illustrated to do with this case ? The enquiry here is, not whether evidence distinguishing the day of a term on which judgment was rendered, in prevention of injustice, is not admissible ; but it is, whether the prescribed and legal description of a term — the technical and established denomination of it — may be changed, at the pleasure of the clerk, who issues an execution. Most clearly it cannot, without sanctioning the most glaring absurdity. If it may be done, then the description of a term may be varied to meet the acts done by the court on each successive day; and the court commencing its session on the second Tuesday, may be described as of the second Wednesday, the second Thursday, and indeed as of every other day, during its session. By this strange novelty, the general convenience of a uniform denomination would be lost, and nothing would be gained. The particular days of a term are always distinguishable in promotion of justice ; and what more can be desired ? The legal principle on this subject, has been long established. Fictions of law always hold in respect of the ends and purposes for which they were invented ; and it is only when they are urged to an intent and purpose not within their reason and policy, that the truth may be shewn. Morris v. Pugh & al. 3 Burr. 1243. The technical term of a court, by the establishment of a descriptive appellation including all the days of its session, was intended to promote general convenience ; and to admit a change of the description, at the pleasure of any one, would contravene the very end and purpose of its institution. Nor does justice demand the innovation contended for. It is as easy to describe a court, by the mention of its term, as in any other manner. No possible hardship can result from an inflexible adherence to this principle; while a departure from it would be both unnecessary and inconvenient. In the case before us, the mischief has not arisen from any difficulty in de [11] scribing the court; but from inattention and mistake, it has been misdescribed. The description of a record is matter of substance ; and a mistake in not describing it truly, is a fatal error. Dicken v. Greenville, Carth. 158. Wells v. Girling, 3 Moore, 75. Undoubtedly, the execution in question, unsupported by a judgment, is void. The sheriff was under no legal obligation to enforce it; nor could he do it, without becoming a trespasser. If legal process is awarded erroneously, it is a vindication of the officer who acts under it; but if it issue without the authority of law, it is utterly void. Marshalsea case, 10 Rep. 76. a. b. Bushe’s case, Cro. Eliz. 188. Martin v. Marshal and Key, Hob. 63. Entick v. Carrington & al. 2 Wils. 275. Perkin v. Proctor and Green, 2 Wils. 386. Grumon v. Raymond & al. 1 Conn. Rep. 40. In conclusion, I cannot but remark the extreme groundlessness of the plaintiff’s claim. He demands damages of the defendant, when by his act or omission, he has suffered none ; he demands them for the neglect to do that, which the defendant was under no legal obligation to do; and he complains because the body or the property of the supposed execution debtor was not levied on, when the taking of either would have subjected him to damages, in an action of trespass. The other Judge# were of the same opinion, except Brain-ard, J., who was absent. New trial not to be granted.