Page:Federal Reporter, 1st Series, Volume 6.djvu/679

 BABNES V. VIAUj. 667 �ihe client. The only difference which has been pointed out between that case aud this is that the writ had been set aside before the action was brought. But here the plaintiff waa discharged on habeas corpus, and though that was, probably, for a different cause, yet after he was set at liberty he had no occasion to apply for a modification of an execution which had become inoperative as to his person. Besides, this was not a case demanding action by the court. The reason for the rule that an order of court must be vacated before an action will lie, is that the judgment of a court cannot be col- laterally impeached; but when a certain sort of writ has come to be issued as a matter of course, ministerially, the reason for the rule ceases. It was often said, formerly, that a writ or order after it had been set aside was a nuUity from the be- ginning, and the party could not justify under it, because, when he appealed to the record, there was no such record remaining. But this notion is entirely exploded. The court will inquire why the writ or order was set aside, and if for error of the judge no action lies. Williams v. Smith, 14 C. B. (N. S.) 596; Smith v. Sydaiey, h. E. 5 Q. B. 203. �So, in the converse case, if the error was not that of the judge or court, but a mistake of the party, then an action lies immediately. This is a question of faot; and it was the fact in this case that the writ issued as of course. The point is a vital one, undoubtedly; and it may be that the plaintiff, having been driven to his petition for habeas corpus, might have been required by the supreme court to stipulate not to bring an action. We doubt whether the court has a discre- tion to that extent, but do not decide the point. If they could have made such an order they did not. �A single execution in Ehode Island contains ail three of the old writs, just as in Massachusetts, 70 years since. Par- sons, C. J., said : "By our statute we have but one form of execution, which includes a capias ad satisfaciendum, a levari facias as to the money of the debtor, and an extendi facias as to his lands. " The statute requires that when the body ifl exempt the capias shall be struck out. Gen. St. c. 211, §§ 13, 15, 18. It was the duty of the attorney to see that ��� �