Page:Federal Reporter, 1st Series, Volume 6.djvu/677

. BAENB8 ;t). VIALL. 665 �It was hardly denied in argument that the etatute of Ehode Island requiring the dischargo of the plaintiff vas intended to operate at least to prevent anOther arrest upon the same judgment. It may be that it discharged the plaintiff 's body in respect to that debt for ail future time. See Hidden v. Saunders, 2 E. I. 391. �The statute does net provide any machinery for the dis- eharge. It simply requires that the principal debtor shall be discharged. If the law were that the court shonld or might supersede the execution, then it might follow that the coiirt «ould impose 'terms, such as that an action should not be brought, as is the law in England and New York; and that nntil the writ is saperseded it is not too late to charge the debtor in execution, as was held in New York and South Car- olina. Brantingham' s Case, cited in Reynolds v. Corp, 3 Caines, 267; Rohertson v. Shannon, 2 Strobh. 419. In the second of these cases is a very learned and interesting history and description of the English practice. Prom the language of the statute, "euch principal shall be discharged from jaiy and from the action of the jailor, which probably followed the usual practice, it would seem that the discharge isper- emptory and purely ministerial, and we so consider it. �We are of opinion, therefore, that the plaintiff was duly discharged from jail, and was not liable to imprisonment again upon a fresh execution. �Does trespass lie for the new taking and detention — First, against the creditor and the attomey; second, against the jailor? As a mere question upon the form of action, our statute would require this point to be taken by demurrer. Eev. St. § 954r. But behind the form lies the substantial question, whether it is necessary to prove malice, which is the gist of the action upon the case. The distinction is that for force directly applied the person using or commanding it is liable in trespass if the act was unjustiflable; but one who is only remotely instrumental in causing the injury ig to be sued in case. If a warrant, writ, or order is procured from a judge or judicial ofScer having jurisdiction of the subject- matter and the parties, upon a true and f air statement of the ��� �