Page:Federal Reporter, 1st Series, Volume 6.djvu/680

 668 FEDERAL REPORTER. �this was done. If the execution had been issued a few hours earlier, it -vrotdd have been regular, and then the arrest after 30 days -wonld have been bad.; and we do not wish to be understood that the responsibility of the attorney and client would have been at ail different in this state of facts. �The following cases will be found applicable to some or ail of the points heretofore discussed. In many of them the writ was not set aside; in others it was; but, for reasons already given, this was unnecessary in the present case. Where a justice of the peace, having jurisdiction, had rendered a valid judgment, but had issued execution within 2e hours there- after, his second act was ministerial and void, and he was liable in trespass. Briggs v. Wardwell, 10 Mass. 356. Exe- cution similarly issaed from a court of record is void, and a levy under it conveys no title. Penniman v. Cole, 8 Met. 496. Where judgment creditors had, through their attorney, taken out execution when an appeal was pending to the court from the clerk's taxation of costs, they were liable in trespass. Winsloiv V. Hathaway, 1 Pick. 211. Where an execution, afterwards set aside for irregularity, was levied on the plain- tiff's goods, it was held that the cause of action arose at the time of the levy. Read v. Markle, 3 John. 523. Where a debtor was in prison on execution, an extendi facias taken out by the crediter was merely void, and might be collaterally impeached. Kennedy v. Duncklee, 1 Gray, 65. So where the debtor had been diseharged from imprisonment with the creditor's consent. King v. Goodwin, 16 Mass. 63. Where a statuts prohibited arrests before execution for a debt of £20 or less, but gave the judge power to authorize it under certain circumstances, trespass was maintained without set- ting aside the capias. Brooks v. Hodgkinson, 4 H. & N. 712. �It is commonly said that such writs are yoid, and, if the case turned upon that, we might probably hold that the exe- cution, in as far as it was a capias, was void. But that expression is pot a very happy one, because it was not void upon its face, and would undoubtedly protect the sheriff who acted under it. It is void, upon the weight of authority, as a defence to the party who wrongly procured it. ��� �