Citation Numbers: 3 Hill & Den. 523
Judges: Cowen
Filed Date: 10/15/1842
Status: Precedential
Modified Date: 1/12/2023
There can be no doubt, on the evidence, that the defendant below was connected with the trespass. He was plaintiff in the suit. This was conducted by his attorneys, Bolt & Worcester, and [his general agent, Jackson. The fi. fa., of course, was issued by or at the instance of his attorneys; and where the attorney on record conducts the suit in such a way as to be liable to an action of trespass himself, his client is also liable. (Barker v. Braham, 3 Wils. 368, 376 ; Bates v. Pilling, 6 Barn, & Cress. 38 ; Brown v. Feeter, 7 Wend. 301 ; Crook v. Wright, Ry. & Mood. N. P. Rep. 278.)
Proving the levy, and connecting the defendant with it as a party, therefore, made out a trespass against him; and the verdict was right unless he established a justification. To do so, though the execution alone would seem to have been holden sufficient on the older cases, (Bealy v. Sampson, 2 Ventr. 90, 93,) yet modern dicta, and modern pleaders, if not actual decisions, have been quite uniform in the distinction made by Holt, Ch. J. in Britton v. Cole, as it is reported in several books ; (1 Ld. Raym. 305, 309 ; 1 Salk. 408 ; Carth. 441, 443 ;) viz. that where a party is put to justify under an execution, though it was against the plaintiff, he must, to make his authority complete, allege and prove the judgment upon which it was based; (9 Wentw. Pl. 22, 53 ; Clay v. Caperton, 1
But the plaintiff below insists that, from the same circumstances and the same sort of proof, we must presume that the decree and execution were set aside for irregularity ; and that the defendant is liable on that ground. I see nothing in the error book to warrant the conclusion. No record, no supersedeas, no rule setting aside the proceedings on that ground, was produced; although the point was made against the plaintiff that the evidence showed a levy by virtue of judicial proceedings. It is true that the property was discharged, and
The objection that the justification was not specially pleaded, is now heard for the first time. It should have been made in the court below. The evidence of justification may have been received by consent. I agree that in strictness the justification should have been pleaded; (Root v. Chandler, 10 Wend. 110, and the cases there cited;) but we must regard the objection as having been waived.
Judgment reversed.
See Cowen & Hill’s Notes to Phil. Ev. p. 1078, et seq.