
    Amos A. Wright v. A. B. Hazen and Benj. Gordon.
    
      Estoppel. Ecilse imprisonment. Jurisdiction of justices. Habeas Corpus.
    
    If one assume to justify, by special process of capias, he should in his plea, state such facts, as justify that form of process.
    Estoppels, to be available, where there is more than one party, must be mutual, and can only operate upon the parties to the issue, and those who standin privity of estate or descent.
    In a suit against a justice for false imprisonment on a capias that he signed; all that is requisite for him to show is, that the original writ described the debtor as a non-resident, and that he signed the writ supposing such to be the fact.
    Sound policy requires, in this State, that the same rule of construction be extended in favor of the jurisdiction of justices of the peace, as is done in favor of courts of general jurisdiction.
    An execution prima fade should follow the writ.
    If new facts arise before the issuing of an execution, by which the debtor is entitled to have it issue against his goods and chattels only, he may pursue his right on habeas coi'pus.
    
    This was an action on the case for false imprisonment. The defendants plead — first, the general issue, and secondly, a plea in bar — that defendants in this suit caused the plaintiff to be committed by virtue of legal process, and that defendant Gordon was a justice of the peace, &c. The plaintiff, in his replication, replied that said writ was issued without the requisite formalities, and that the plaintiff, in this action, was a resident citizen of this State at the time of his committal upon said process.
    The defendants, in their rejoinders, replied that the plaintiff ought to be estopped from pleading said last mentioned plea, because the plaintiff, in their suit, (the defendant Hazen being plaintiff in that suit, and defendant Gordon was the justice before whom said suit was made returnable,) had under the provisions of the act of 1849, pleaded said facts in abatement before the said justice Gordon, to whom said process was returnable, and that said justice rendered judgment against this plaintiff, on said plea.
    The county court, August Term, 1851, on demurrer rendered judgment that said rejoinders are sufficient. Exceptions by the plaintiff.
    
      
      G. Harrington for plaintiff.
    The proposition that the judgment of Gordon, as a justice should estop the plaintiff from avering and proving, that, he was a resident citizen is without legal foundation. The 67th Sec. of Comp. St. chap. 31 p. 251, has in general terms prohibited the arrest or imprisonment of resident citizens; notwithstanding the proviso, there is no longer any general authority in clerks and magistrates to issue writs of capias on contracts made after January, 1839, consequently, this process against the body of Wright, issued and served on the 22d of March, 1850, was void process, it was not only issued without law, but against a positive statute. The writs being void, all the proceedings under it was coram nonjudiee ; a court must have jurisdiction of the process, as well as the person > and the subject matter, and in this case, for want of the jurisdiction of the first he failed to have jurisdiction of the latter. Aiken v. Richardson, 15 Vt. R. 500. Perkins v. Proctor S? Green, 2 Wilson R. 385. Persons v. Loid, 3 Wilson 341. Baker v. Bro-ham fy Norwood, 3 Wilson 368.
    In the case of a blank deputation, afterwards filled up, as well as one wrongly inserted in a county court writ, as in the cases of Kelly v. Paris et al., 10 Yt. 261; Ross v. Puller, 12 Yt. 265 ; Dolbear v. Hancock, 19 Yt. R. 388, this court held, that the services were void, and that the doings of the deputed persons were trespasses. Could any after adjudication, in those cases have been pleaded as an estoppel in those actions, for trespasses committed by the deputed persons ?
    The defendants pleas and rejoinders fail to answer the plaintiff’s writ and replication, and for that cause are bad.
    The plaintiff has alledged in his replication, the illegality of issuing the execution and his imprisonment upon it, while he was a resident citizen, and to this part of the case the defendants make no excuse except the judgment of the defendant Gordon, of the 15th of April, 1850. The plaintiff might have been a non-resident on the 22d of March, the lime of the serving of the writ, to which time the plea in abatement must have related, and have been a resident citizen on the 15th of April, when the execution was issued. See Sawyer v. Vilas, 19 Yt. R. 43 and note. The legal construction of the act of 1843, Comp. St. p. 251, Sec. 68, is, that the writ of execution is placed on the same footing of mesne process 
      and an affidavit must be filed to make an execution valid against a resident citizen’s body, the same as in case of mesne process. 2 Wilson E. 3. Scott v. Dixon and notes, 1 Saunders E. 299.
    
      Stevens § Ddson and Sowles for defendants.
    For the defendants it is contended, tbat the plaintiff,. having under tbe statute of November 12, 1.849, submitted tbe question in dispute to a court of competent jurisdiction, tbe decision of tbat court is conclusive, and that be is estopped from again litigating tbe point so decided. Trevivan v. Lawrence et al., 2 Smith’s Leading Cases 486.
   By the Court.

To state tbe points involved in this case in tbe briefest manner, it appears to us,

1. Tbat tbe estoppel relied upon by tbe defendant, who was a party to the original suit, is conclusive as to him, and when replied by him separately, is available. But it can only defeat the plaintiff’s replication, and thus leave tbe defense to stand upon tbe defendants’ plea.

2. Tbe plea of this party, Iiazen, it seems to us is defective, in not containing an allegation, that tbe plaintiff here, at the time of praying out process,’in tbe original action against him, was a nonresident. Tbe common form of civil process now, being 1hat of summons or attachment of goods, &c. if one assume to justify, by virtue of special process of capias, be should, in his plea, state such facts as justify tbat form of process.

3. As to tbe justice Gordon, it seems to us the estoppel is not available as such, in his behalf. He not being a party to the former issue, would not be bound where tbe finding was against, and cannot, therefore, take advantage of a finding in bis favor, inasmuch as estoppels must be mutual, and can only operate upon the parties to tbe issue, and those who stand in privity of estate or descent.

This will leave tbe case to stand, as to him, upon bis plea and tbe plaintiff’s replication, which will make it substantially bad, without regard to tbe form of pleading, as it will show tbat tbe plaintiff was a resident citizen at tbe time tbe writ issued. This will entitle the plaintiff to have judgment, in his favor, on tbe pleadings.

But as it is probable a repleacler may be desired, we will suggest our view of the law arising upon the other questions discussed.

1. As to the justice, it seems to us all that it is requisite for him to show is, that the original writ described the debtor as a nonresident, and he signed the writ supposing such to be the fact, having no mode of trying that question in advance. But we are aware that the decisions in New York, and probably in some of the other States, have required the justice to know the facts, limiting the extent of his jurisdiction, at his peril. But no such rule has ever been applied to courts of general jurisdiction either in Westminster Hall, or in this country, and the jurisdiction of justices of the peace has become so important and extensive, that we incline to believe sound policy requires us to extend the same rule of construction in favor of their jurisdiction, which is done in favor of courts of general jurisdiction. Any distinction, in the particulars'now before us, would be very unreasonable, not to say more.

2. In regard to the execution, prima facie,it should follow the writ. The provision in regard to executions being included under the general term writ found in the statute, is intended to enable the creditor to swear out a capias execution, if he finds himself entitled to one. And if new facts arise before the issuing of an execution, by which the debtor is entitled to have it issue against his goods and chattels only, he may pursue his right on habeas corpus and perhaps in other modes.

Judgment reversed and repleader awarded o'n terms.  