
    Winslow versus Hathaway et al.
    
    W. told the clerk of the Court, that, if certain items of costs taxed by H. should be allowed, an appeal to a judge would be insisted on j and after the execution was made out, but was yet in the clerk’s hands, W. reminded him of the appeal claimed ; held, that this was a sufficient entry of the appeal.
    And H. having obtained such execution through mistake, and, after notice of the appeal, having caused W. to be arrested, whereupon he satisfied the execution, the Court held, that the execution was void, and that H. was liable to W. in trespass for the amount paid by W., with interest from the time of payment.
    The Court had H.’s action brought forward on the docket, in order that the judgments in the two actions might be set off.
    This was an action of trespass for an assault, battery and false imprisonment. The defendants pleaded the general issue, and also justified under an execution which issued on a judgment recovered by them against the plaintiff at the term of this Court held in this county by adjournment, m May 1820, The execution was dated the 27th of June, 1820; and was made returnable within six months from the date.
    The plaintiff, by his attorney, at the term when judgment was recovered by the defendants as before mentioned, gave notice to them, by an entry on the clerk’s docket, of his desire to be present at the taxing of the costs. The parties were afterwards heard by the clerk in no other way than as follows. The attorney of the defendants taxed his bill of costs and handed it to the attorney of the plaintiff, who marked a large number of items in it, and then gave it to the clerk, and at the same time informed him that if he (the clerk) allowed any of the items so marked, an appeal would be insisted on to one of the judges of this Court. The clerk afterwards, in the absence of the plaintiff and of his attorney, struck out a small part only of the items so marked, and, on the application of the defendants’ attorney, made out an execution and sent it to him. There being an informality in the execution, it was returned for the purpose of being corrected. The clerk then made out another, but before it was taken from his office it was discovered by the plaintiff’s attorney, who reminded him of the unsettled question relative to the bill of costs, and of the appeal claimed. He objected to the issuing of the execution, and requested the clerk to inform the defendants’ attorney that he, in behalf of the plaintiff, would attend any judge of this Court at any time and place that the defendants’ attorney would appoint. The clerk then said the execution should not go out of his office until the question as to the costs should be settled by the Court. In the absence of the clerk, however, the execution was delivered to one of the defendants by the person who attended to the business of the office. The plaintiff’s attorney, on finding that the execution was in the hands of an officer, wrote to the judge before whom the cause was tried, and received a letter from him, and another from the clerk. The substance of these letters was, that the execution must not be served until the parties should have an opportunity of being heard before the judge respecting the costs. The letters were read to one of the defendants before the service of the execution, who notwithstanding directed the officer to serve it. The plaintiff was arrested, but paid the execution without being committed to jail.
    The jury were instructed, that the appeal from the clerk’s aecision was regularly claimed, and that it was immaterial whether it was claimed before or after the execution was is sued ; that the letter from the judge was equivalent to a supersedeas ; that the execution was void, not being made returna ble according to law; and that they ought to find a verdict foi the plaintiff for the whole amount paid by him in discharge of the execution, with interest from the time of payment. The jury returned a verdict accordingly. Tf these directions were right, the verdict was to stand, otherwise a new trial was to be granted.
    
      W. Bay lies, for the defendants.
    The case of Ranlet v Warren, 7 Mass. Rep. 477, settles the point, that the mistake of the clerk, in making the execution returnable in six months, instead of making it returnable at the next term, does not render the execution illegal and void.
    In regard to the question of costs, the proper evidence ol an appeal would be a record of the clerk. But in fact no appeal was claimed. The plaintiff said, if certain items should be allowed, he would appeal ; but this is not an appeal, any more than it would be, if a man were to say, that he would appeal if the judgment in an action should go against him.
    The execution was properly-issued, and was delivered to the defendant by a person acting for the clerk. Neither the clerk, nor a judge in vacation, has any control over an execution which is in an officer’s hands ; and it is not immaterial whether the appeal is claimed before or after the execution has issued.
    The letters were not addressed to the officer, and he was not bound to regard them. The remedy against excess of costs levied is by an action to recover back the excess. The plaintiff had no ground for demanding exemplary damages, and if the defendants are held to pay the whole amount off this verdict, they ought to have some mode of obtaining what is justly due to them.
    
      Merrick, for the plaintiff.
    Tf an execution is void or vacated, it is no justification to a person acting under it MetcalPs Yelv. 42 a, note, and cases cited ; Read v. Markle, 3 Johns. Rep. 523. This execution was void on the face of it, not being made returnable according to St. 1783, c. 57, § 1, which is peremptory, that executions issuing from this Court, in counties where the Court holds two terms in a year, (as was the case here,) shall be made returnable at the next term. The execution was void, also, because in regard to the costs it was not grounded upon a judgment.
    According to Dodd v. Lewis, 10 Mass. Rep. 26, the parties are to be heard on the subject of costs before the clerk ; from whom they may appeal to a judge at his chambers. No particular mode of appeal is pointed out. It need not appear upon the record. But if it ought to appear there, the plaintiff, who has been guilty of no loches, is not to be deprived of his rights because the clerk has neglected to make the entry.
    The plaintiff told the clerk, that if certain items were allowed he should appeal. This was sufficient; there is however more in the case. While the second execution remained in the clerk’s office, the plaintiff renewed his claim of an appeal in unambiguous terms ; and it was the intention of the clerk in consequence to retain the execution until the question of costs should be decided. When an appeal is claimed, no execution can be sustained by the judgment appealed from. Campbell v. Howard, 5 Mass. Rep. 376.
    If the clerk could not interfere with an execution after it has once issued, then this execution is void, because, one having been already issued, he had no right to make Out a second.
    The execution was at least voidable, having issued irregularly, and might have been set aside upon motion to the Court. Ranlet v. Warren, before cited ; Johnson v. Harvey, 4 Mass. Rep. 483. But the Court being adjourned, the only way left to the plaintiff was to apply to a judge at his chambers.
    This action will lie ; Briggs v. Wardwell, 10 Mass. Rep. 356; Albee v. Ward, 8 Mass. Rep. 79; and the damages are reasonable, because the defendants persisted in enforcing the execution, in opposition to the direction of the judge. They cannot complain, although they should lose the benefit of their verdict. If the execution, however, was void, no execution has issued, and the defendants are yet entitled to one.
   (Thacher J.

By the Court dissenting). The question is, whether the defendants, in obtaining the money of the plaintiff, acted under a legal authority ; if not, they are liable to the plaintiff in this action. Costs are to be settled according to usage, as there is no statute pointing out the mode. It would be impossible always to tax them in court, and generally it is done out of court. If a party were allowed to tax his own costs, he might sometimes charge too much unintentionally The question then is, how are they to be settled ; and the Court, in Dodd v. Lewis, lay it down as a rule, that they should be taxed before the clerk; and if the parties canna* agree, application is to be made to a judge at his chamber^ Here both parties did not think it necessary to go before the clerk, but one of them taxed his bill of costs and submitted it to the other; who, after marking several items as improperly taxed, handed it to the clerk, informing him, that if any of the items so marked should be allowed, an appeal to one of the judges would be insisted on. And afterwards, while the second execution remained in the clerk’s hands, the plaintiff’s attorney reminded him that an appeal was claimed. We think that an appeal was entered according to the practice in such cases, and that the party taking the execution from the clerk’s office did it irregularly. There' is no difference between this case and one where a party should take an execution lying on the clerk’s table, which the clerk should tell him was made out by mistake and was not intended to issue, and yet he should go on and levy it.

Judgment must be for the whole sum found by the verdict > but as we are of opinion that no execution has issued in the first action, let that action be brought forward, and the present one be continued for judgment, in order that the two judgments may be set off against each other.  