
    
      No. 4.
    NASON agaiast SEWALL AND MITCHELL.
    
      Franklin,
    
    1819.
    WHEBÍE a debtor has been arrested on execution, and discharged out of custody, by the creditor, and the same debtor is again arrested and imprisoned on an alias execution. issued on the same judgment, by the directions of the creditor, tresspass for false imprisonment will not lie, for this second imprisonment.
    Action for false imprisonment. Plea — Justification under final process, issued on a judgment, in the name of a third person, but the property of defendant. Replication— That defendant, as agent for plaintiff, purchased the judgment with plaintiff’s property and for his benefit, and fraudulently concealed the purchase from the plaintiff, and caused the execution to be issued on which plaintiff is imprisoned. Replication held bad on demurrer.
    THIS was an action of trespass, for an assault and báttery and false imprisonment.
    Plea, in bar, of Sewall — That heretofore, to wit, at the Cir] cuit Court of the United States, May term, 1816, Lawrence Sallis, of the City, County, and State of New-York, and Francis Yvonet, of Troy, in the County of Rensellaer, in said State of New-York, recovered judgment against the said plaintiff,, and one Bohan Shephard, for $1555,54 debt, and $35,37 costs $ that on the 11th October, 1817, before the supposed trespasses; complained of in plaintiff’s declaration, the said judgment then remaining in fall force, the said Lawrence ánd Frar/f cis authorised the said Henry to collect, for his own use and benefit, the said debt and costs, to take out execution in their names, and to pursue, all legal measures for the collection of said debt and costs ; that the said Henry, beingt’so empowered, did, on the 12th day of October, 1817, cause tobe issued a plevies Ca. Sa. (four former writs having issued and been returned unsatisfied) dated the day and year last aforesaid, signed, &c. and returnable within sixty days from date, directed to the Marshal, &c. that the said Henry put the said writ into the hands of David Robinson, Esq. Marshal of the District of Vermont, whu.3 on the first day of November,' 1817, took and arrested the body of the said plaintiff, and him has kept and detained in custody, under and by virtue of said writ of execution, and for the cause therein specified, and for the time in said declaration mentioned, which is the same supposed trespass, which the defendant is ready to verify, &c.
    
      Replication. That on the 20th day of October, 1814, the said Bohan Shephard, being in execution, at the suit of the said Sallis and Yvonet, and in the common jail, in St. Albans, in and for the County of Franklin, aforesaid, being then admitted to the liberties of said prison, upon a certain jail bond, executed in thát behalf, by the said Bohan and the plaintiff; and tíre said Bohan having committed no escape of other breach of said jail bond; afterwards on the 27th day of October, 1814, the said Bohan, at St. Albans, aforesaid, delivered and paid into the hands of the said Henry D. Sewall, a great amount of property, to wit, two thousand dollars, consisting of, &c. for the purpose of enabling the said Henry D. Sewall to purchase in, for the benefit of the said Bohan and the plaintiff,' the Said debt so flue and owing to Sallis and Yvotíet, as aforesaid ; and the said Henry then undertook, as soon as convenient, to purchase in said debt, as aforesaid. And the said B'ohan, not having before committed any escape or other breach of the said jail bond; afterwards at St. Albans, aforesaid, on the 28th October, 1814; with the knowledge and consent of the said Henry, and at his request, departed from the liberties of said prison. Arid the plaintiff farther replies, arid says, that afterwards, to wit, on or about the 15th day of January * 1815, the said Henry, in pursuance of his said undertaking, purchased in said debt front the said Sallis tfnd Yvonet, for the benefit of,the said Bohan and the plaintiff, with the estate so delivered to him by the said Bo-han, for that purpose,, as aforesaid, And the plaintiff farther saith, that the said defendant caused a sui.t to he duly instituted before the said Circuit Court on the jail bond, aforesaid, in fa-, Vor of the said Sallis and Yvonet, against the said Bohan and the plaintiff, at October term, 1815, in' which suit the judgment aforesaid, mentioned in the defendants’ plea, was recovered, at May term, 1816, as set forth in the defendants’ said plea. And during the pendency of said suit, and at all times previous, and uiitil after the rendition of the judgment aforesaid, the said Henrjt fraudulently, concealed from the Said Bohan and the plaintiff, all knowledge and information of the purchase of said debt, by the said Henry, as aforesaid, and the said Bohan and the plaintiff remained ignorant of the purchase of said debt¿ by the said Henry, as aforesaid, until long after the rendition of said judgment; that the said Henry was, on the 11 th and 12th days of October, 1817, and still is empowered by the said Sallis and Yvonet, as stated in his plea aforesaid. And the plaintiff further sáith, that the said Henry, after the purchase of said debt, to wit, on or about the 27th day of February, 1817, and before the issuing of the pretended execution, dated October 12, 1817, by the defendant in his said plea mentioned, caused and procured an execution, in due form of law, to be issued on said judgment, in favor of said Sallis and Yvonet, against the said Bohan Shephard and the plaintiff, and after-wards, on the 2d day of April 1817, the said Henry caused and procured said writ of execution to be put into the hands of David Robinson, Marshal, as aforesaid, to serve and return, and then and there directed the said Marshal to arrest and keep the bodies of the said Bohan and the plaintiff thereon; and after-wards, to wit, on the 3d day of April, 1817, and while said wrjí of execution was in full force, the said Marshal, in obedieneé to the command of the said writ and the directions of the said Henry, by virtue of said writ arrested the bodies of the said Bohan and the plaintiff, and them, then and there kept and de. tained in Custody foí* a long time, to tfit, for the space of five days. And the plaintiff further saith, that afterwards, to wit, at St. Albans, aforesaid, on or about the 8th of April, 1817, and while the said Bohan and the plaintiff so continued in custody of the said Marshal, as aforesaid, the said Henry ordered and directed said Marshal to release and discharge the said Bohan and the plaintiff from custody and imprisonment, under and by virtue of said writ of execution, upon condition that they should pay the said Marshal his fees on said execution ; and the Marshal aforesaid, in obedience to the said order and direction of the said Henry* thereupon did release and discharge the plaintiff from all father custody, imprisonment, and restraint, in that behalf, all which he is ready to verify, wherefore, &c. Demurrer.
    
      Causes. That plaintiff’s replication is double and has tendered distinct matters to be put in issue :
    1. The purchase of said debt as stated in the replication.
    2. The' arrest, imprisonment, and release of the plaintiff, as set forth in the replication.
    For defendant, in support of the general demurrer, Swift and Van Ness :
    
    1. It appears from the plaintiff’s replication, that, the imprisonment complaned of, was under a process of execution, regularly issued, by a court having power to issue the same; the plaintiff cannot, therefore, maintain trespass for this injury, but if any action will lie, it must be case. 1 Chit. PI. 136, 164, 183, 186. 2 Chit. PI. 242. 3 Term Rep. 185. 3 Esp. R. 144. 2 Black. R. 1190. 2 Wilson 302. 2 Doug. 671. 1 B. and P. 388. 7 T. R. 634. Cowp. 18.
    2. By this action the plaintiff attempts to reverse the judgment Of a Court having complete jurisdiction, which cannot be done in this collateral way ; but must be considered good, t<n 
      all intents and purposes, until in some way set aside.' 3 Term R. 125. 1 Stra. 481. 2 B. and P. 391. 7 T. R. 634. 1
    Chit, PI. 183. Phil. Ev. 225, &c.
    In support of the special cause of demurrer *.
    Every plea must be single, entire, and confined to one single point. 5 Com. Dig. 385, 65. 5 B. and P. 76. 1 Bur. 320-4.
    3 Bla, Com. 31 i. 1 Chit.PI. 32.
    
      Contra, Royce.
    
    The replication is an answer to the plea, for where a creditor has received a full satisfaction Qf his judgment, and discharged the debtor out of custody on execution, it is false imprisonment to arrest him again on the same judgment.
    The public credit to be given to the signature of the c]erk of .a court of record, as well as the power qf the court, will protect the officer^ but not the party, who is guilty of an imposition on both.
    To shew the replication duplex, the defendants must prove it to contain two separate and wholly disconnected facts, either of which alone entitles the plaintiff to recover. Bla. R. 1022.
    The payment, and discharge, even though separately, entitling the plaintiff to recover, are yet so connected that plaintiff may well aver both ; they form one entire transaction or de-fence to the execution and judgment.
   Opinion of the Court:

The authorities are full in point, that tresspass will not lie in this case, and these, pleadings present a strong case for their application. By maintaining this action the Court would, in effect, attempt to control the process of the Circuit Court of the United States ; it would be very inconsistent that this Court should support an action fpr false imprisonment, for confinement on an execution issuing from that Court, while that Court may refuse to relieve the prisoner by setting aside the execution, and may even sustain an action for an escape, should he be liberated by the jailer.

2. As to the facts of misconduct of defendant, as agent of the plaintiff, and the purchase of the debt, as stated in the replication, they were matters of defence to the original action, or perhaps, if discovered after judgment, causes for setting aside the judgment, by process brought to the Circuit Court, directly upon that judgment, and for that purpose ; but, they cannot be pleaded in avoidance of the judgment in this collateral way, while that judgment stands in full forcé ; the party and all acting under him must be justified in carrying that judgment into efféct.

Replication insufficient.  