Page:Federal Reporter, 1st Series, Volume 6.djvu/678

 666 FEDBBA.L BBPOBTEB. �facts, then, if the wit or order is erroneous, it is the mistake of the court; aiid.iBince it is highly inexpedient that a judge shonld actat the petil of damages, there is no redress. This is 80 in Bome cases, evenwhere the judge has not jurisdiction, if he decides that he has it. If, however, the facts are falsely and maliciously stated to the judge, the person guilty of the malice is liable in an action on the case. But if the act is throoghout the act of the party, and there is no actual judicial finding, trespass will lie for the injury whether it was commit- ted with or without malice. The only diiierence is in the damages. In this country, and especiaUy in New England, the writ of execution is not gtanted by a judge, but issues as matter of course from the clerk's office ; and there are many decisions that a justice or clerk -who issues such a writ does it ministerially, and not judicially, and therefore is responsi- ble in damages if On¥ is issued oontrary to law upon the facts ■within his knowledge. See Briggs v. WardweU, 10 Mass. 356; Fisher v. Deans, lOT Mass. 118; Andrews v. Marris, 1 Q. B. 3; Carratt y: Morley, Id. 18; Lewis v. Palmer, 6 Wend. 36T. �In this case there was nothing upon the records of the supreme court to instruct the clerk that the plaintiff had been imprisoned for more than thirty days, and therefore he was not wrong in issuing the execution in the form usual in such cases. The authorities are likewise many which hold that when a plaintiff, through his attorney, procures an execution or other writ which issues as of course, and which he has no iight to have, both the plaintiflf and the attorney are liable in trespass : the plaintiff, because the attorney acts for him in the due course of his employment ; and the attorney, be- cause in tort the oommand of a superior is no def ence. Deyo V. Van Valkenburg, 5 Hill, 242; Kerrv. Mount, 28 N. Y. 659; Bates V. Pilling, 6 B. & C. 38 ; Codrington v. Lloyd, 8 A. & E. 449; Oreen v. Elgie, 5 Q. B. 114. �The leading case upon thia subject is Barker v. Braham, 3 Wils. 3O8. There the attorney of a crediter caused execution to be issued against the person of an administratrix, when it fehould have been only against the gooda of the intestate in her hands. Trespass was sustained against the attorney and ��� �