Humphrey v. Case

Bissell, J. It is admitted, that the writ alleged to have been returned, was a void process ; and that all the proceedings under it were coram nonjudice, and utterly void. Case v. Humphrey, 6 Conn. Rep. 130. And here it was contended, by the plaintiff in error, that the writ and process, and the judgment thereon being void, no action lies against the officer, for a false and fraudulent return. The declaration alleges, that upon the judgment so rendered an execution issued, on which the plaintiff’s property was taken and sold ; that he was compelled to prefer his petition for a new trial; that in bringing and prosecuting such petition, great expenses were necessarily incurred; and all the damages, sustained by the plaintiff, are averred to have arisen, in consequence of the wrongful and fraudulent conduct of the defendant. The question, then, raised by this objection, is resolvable into this. If one person do an illegal and wrongful act, to the injury of another, is it any defence, that such act was done under a void process ? The statement of the question would seem to suggest the only answer, which can be given, and to preclude the necessity of further discussion. The doctrine contended for would be a reproach to the law, and is entirely opposed to all its analogies. Thus, an action lies for a malicious prosecution, although the indictment were defective; and also where it was preferred coram nonjudice. 1 Selw. N. P. 807. Jones v. Gwynn, Gilb. Rep. 185. S. C. 10 Mod. 148. 214. Wicks v. Fentham, 4 Term Rep. 247. Elsee v. Smith, 1 D. & R. 97. Chambers v. Robertson, 1 Stra. 691. In the case last cited, the court, unanimously, held, that the action would lie, though the indictment were bad. And the reason given is, “that a bad indictment serves all the purposes [105] of malice, by putting the party to expense, and exposing him, but it serves to no purpose of justice, in bringing the party to punishment, if he be guilty.” Indeed, since it has been settled, that expense alone is a sufficient ground to maintain the action, there would seem to be no further room for controversy, on this point. For it is surely very immaterial to the party, whether the expense were incurred in defending against a good or a bad indictment. So in the case before the Court. It is not denied, that if there had been a false and fraudulent return of a valid process, by means of which an injury had been sustained, redress for such injury, might have been had against the officer, who committed the wrongful act. Does it mitigate the wrong of the one party, or the injury to the other, that the process is void? But it is said, that the plaintiff has his remedy against the party suing out such void process ; and, therefore, the officer ought not to be held liable. The premises may be true, but the conclusion does not follow. That the defendant below was one only of the parties, to an unlawful act, is surely no defence; unless another ground taken in the argument be tenable, viz. that the declaration having disclosed a conspiracy between the defendant and others, all should have been made parties, and all must have been found guilty, in order to sustain the verdict. In answer to this, it is only necessary to say, that the doctrine has been exploded, ever since the action on the case in the nature of a conspiracy was adopted. I am of opinion, that the declaration is sufficient; and that there is nothing erroneous, in the judgment complained of. The other Judges were of the same opinion. Judgment affirmed.