plaintiff and two others; which at the time of the issuing of the execution was in full force, not reversed or annulled, or in any part satisfied. The plaintiff replies that after the execution was issued, and before the arrest, two, who with him were the judgment debtors, paid the judgment to H. Hubbard, and concludes the replication with a formal traverse," without this, that at the time when the arrest was made, the said judgment was in full force and in no part satisfied." The rejoinder, passing over the traverse, denies the matter of the inducement contained in the replication; namely, the payment of the judgment, as therein alleged.

The plaintiff demurs to this, and assigns causes, the consideration of which may be postponed for the examination of a question raised as to the materiality of the allegation that the judgment had been paid before the arrest of the plaintiff upon

the execution.

It is said that the allegation of the payment of the judgment to H. Hubbard is immaterial, because that trespass will not lie for a wrongful use of legal process; and that where the process of a court is regular upon its face, it will protect all acting under it until it has been vacated, or set aside by the court, or abandoned absolutely by the party suing it out.

This objection goes merely to the form of the action; for surely it can not be contended that the second collection of an execution is just or legal; and if the party suffering from such a wrong is without remedy, there is a defect somewhere in the retributive powers of the law. We certainly have no reason to believe that the party in such a case is without redress, and the tendency of the argument, as well as of the authorities in the main, has been to show that case should have been brought instead of trespass, or that no action should have been brought till the execution had been set aside or vacated.

It has, indeed, been said that the defendants, having purchased an execution, good upon its face, are not liable unless they knew of the first payment, and have acted maliciously. That is a point which we will consider hereafter. The principal objection, then, is to the form of the action; and upon this point it is well settled that the court will not turn a party round upon the form of his remedy, where he is clearly entitled to some redress, unless compelled to do so by the established rules and principles of law. Let us then examine the authorities cited and see how far they control the case before us.

arious cases are cited to show that trespass will not lie for

the wrongful use of legal process. In Plummer v. Dennett, 6 Greenl. 421 [20 Am. Dec. 316], one was arrested upon a writ sued out for a pretended and groundless cause of action, with a view to compel the party to do certain things. It was held, that case for a malicious prosecution, and not trespass, was the proper remedy. There the arrest was legal and the process valid.

In Hayden v. Shed, 11 Mass. 500, the writ had been abated upon a plea of another action pending for the same cause; yet it was held that case and not trespass was the proper form of action for one whose goods had been attached on the writ. Case would lie if the last suit were malicious, but it is questionable if it would otherwise.

In Beatty v. Perkins, 6 Wend. 382, it was held that trespass would not lie against a party who acted under a search-warrant duly granted; but case for a malicious prosecution, if the warrant were obtained for improper purposes. Elsee v. Smith, 2 Chitty, 304, is to the same point.

All these cases show a process regularly sued out, valid in all its forms, but sued out from improper motives and applied to improper purposes. The remedy, therefore, is by case for malicious prosecution. The act done is legal, and authorized by the process, but the purpose for which it is done is wrong, and its result is an injury.

In Blanchard v. Goss, 2 N. H. 491, a capias was sued out upon a contract under thirteen dollars and thirty-three cents, and it was alleged that the contract was made after the first day of January, 1819, and the body was not, therefore, liable to arrest. Trespass was brought for the arrest. The court held that the validity and legality of the process could not be decided collaterally, and that no action of trespass could be maintained till the process was quashed or set aside. If in this case the contract was alleged in the writ to have been made prior to the first of January, 1819, so that the process was upon its face valid, then it was properly sued out; it authorized the arrest, and its validity could not be determined but in the suit itself. Nor even in case the defendant in the original suit had prevailed, and abated or set aside the writ, on the ground that the contract was in fact made after the first of January, 1819, do we see how the creditor would be liable to an action, unless he acted maliciously. An unsuccessful party is liable to costs as of course, but where he sues out the process adapted to what he alleges as the cause of action, he is not liable to an action for

damages, even if he fails to make out his case as alleged, unless he has acted maliciously.

But if it had appeared on the face of the process that the contract was made after the first of January, 1819, then, upon the principles laid down in the case, it would not protect the party, even if not set aside. The case of Blanchard v. Goss is, therefore, the case of a writ sued out, regular in all its forms, and authorizing the acts done; and the acts were proper to be done in the case alleged or set up.

How far do these authorities apply to the case under consideration? Where the process of the court has been abused, trespass against the sheriff, or other ministerial officer committing the abuse, is the proper action, if the conduct of the officer was in the first instance illegal, and an immediate injury to the body, personal or real property: 1 Ch. Pl. 170. And there is no occasion to set aside the process; that is well enough; and the injury results from the abuse of the process, as if the officer arrest one out of his bailiwick, or after the return day of the writ, or take what can not be lawfully seized. So though his conduct in the first instance be lawful, yet if he abuse his authority, he thereby becomes a trespasser ab initio: Id.

If J. S., who has distrained a beast damage feasant, after kill or use the beast, he becomes a trespasser ab initio. These acts are an abuse of his authority. So if a man who goes lawfully into an inn, be after guilty of an injurious act therein, he becomes a trespasser ab initio : The Six Carpenters' Case, 8 Co. 146.

A constable, who had the warrant of a justice of the peace to search the house of J. S. for stolen goods, pulled down the clothes of a bed where was a woman, and attempted to search under her clothes. Held, that by this indecent abuse of his authority he became a trespasser: 4 Bac. Abr. 161.

This class of cases, of which there are many in the books, differ altogether in principle from those cited by the defendants' counsel. They go upon the ground that although the parties were assuming to act under process of the court, yet that process did not authorize the acts that were done, and the parties were held liable precisely as if they had acted without any process at all. And these cases, in our judgment, control the case before us.

An execution had issued in favor of Sabin against the plaintiff and others. That execution, according to the allegation in the plea, was paid and satisfied; and after this the defendants

AM. DEO. VOL. LI-15

caused the plaintiff to be arrested upon the same execution, and imprisoned till he paid the debt a second time.

Now, what does an execution authorize the party or officer to do? Simply to levy a certain amount of money, debt, damages, and costs, with the officer's fees. We speak of the common form of execution. All directions or commands given to the officer are subscribing to this purpose. He is commanded, of the goods, etc., of the debtor, to cause to be levied and paid to the creditor the aforesaid sums, with lawful interest thereon, and seventeen cents more for the writ and his own fees. If he is authorized to take the goods, lands, or the body, it is only to enforce the payment of these precise sums.

If the officer does more than this, he abuses his authority and becomes a trespasser. He ceases to act under and by virtue of the process, and proceeds in abuse of it. If the debtor tender the sums due, the officer can not touch the property nor the hem of the debtor's garment. "The direct and sole object of the execution is to raise the money and satisfy the judgment creditor. That object having been attained, the power conferred by the writ is spent:" Sherman v. Boyce, 15 Johns. 443; Rogers v. McDearmid, 7 N. H. 506.

The law indeed goes beyond this. If a sheriff voluntarily permit a debtor, arrested upon an execution, to go at large, even without payment, he can not retake him; and if he does, he is subject to an action for false imprisonment. The creditor, however, may arrest him, if discharged without his consent: Jones v. Pope, 1 Saund. 35, note 1; Atkinson v. Jameson, 5 T. R. 25; Cheever v. Mirrick, 2 N. H. 376; Lathrop v. Briggs, 8 Cow. 171; Ransom v. Keyes, 9 Id. 128; Brown v. Getchell, 11 Mass. 15; Deyo v. Van Valkenburgh, 5 Hill (N. Y.), 247.

So where a party was arrested, and he at whose suit the arrest had been made, ordered the sheriff to discharge him and to release him from the action, notwithstanding which the sheriff detained him, false imprisonment was held to lie: Withers v. Henley, Cro. Jac. 379. And if the creditor discharges a debtor so arrested, without payment, he can not arrest him again, nor proceed against any other joint debtor; and if he does, he is liable to trespass: Gould v. Gould, 4 N. H. 174.

A ca. sa. issued upon a judgment which has been previously paid, will protect the officer, but not the party nor the attorney who issues it; and false imprisonment lies, though the process be not set aside: Deyo v. Van Valkenburgh, 5 Hill (N. Y.), 242; and in Wood v. Colvin, 2 Id. 566 [38 Am. Dec. 598], it was held, that if

a judgment be satisfied, the power to sell under it ceases; and should a sale take place, even a bona fide purchaser under the judgment without notice, it is said, will gain no title. But see Jackson ex dem. Saunders v. Cadwell, 1 Cow. 622.

There are various other authorities to show that where a judgment has been paid or satisfied, no execution can properly issue upon it; and if one be issued, it will afford no protection to the party who sues it out: Ladd v. Blunt, 4 Mass. 402; Hammatt v. Wyman, 9 Id. 138; Little v. Newburyport Bank, 14 Id. 443; Lewis v. Palmer, 6 Wend. 367; McGuinty v. Herrick, 5 Id. 240; Kuhn v. North, 10 Serg. & R. 399; Smith v. McGowan, 3 Barb. 410; Sherman v. Boyce, 15 Johns. 443; Jackson d. Anderson v. Anderson, 4 Wend. 474; Swan v. Saddlemire, 8 Id. 676; Gould v. Gould, 4 N. H. 173; Thrower v. Vaughan, 1 Rich. 18.

The case of Luddington v. Peck, 2 Conn. 700, is adverse to all these authorities, and can not be sustained.

It was indeed admitted by the defendants' counsel, that if the first payment had been made to an officer, the judgment would have been satisfied and extinguished; but it was argued that such was not the effect of a payment to the creditor, not indorsed upon the execution. The authorities, however, do not sustain, but repudiate any such distinction.

In the following cases the first payment was not to an officer: Jackson d. Anderson v. Anderson, 4 Wend. 476; Swan v. Saddlemire, 8 Id. 681; Wood v. Colvin, 2 Hill (N. Y.), 566 [38 Am. Dec. 598]. In Deyo v. Van Valkenburgh, 5 Id. 242, there was no payment, but a discharge under an insolvent law, of which the creditor had notice. In Thrower v. Vaughan, 1 Rich. 18, it was held, that a sheriff had no authority to sell under an execution satisfied in fact, though appearing upon its face to be unsatisfied. If, however, he has no notice of the satisfaction, he will not be liable in trespass to the debtor for acting under it.

And there is no difference in principle between payment to an officer and to a creditor. The officer acts wholly for the creditor. He is, by the express command and exigency of the writ, to cause to be levied and paid to the creditor the sums named. It can make no difference whether payment be made to the creditor directly, or circuitously through the agency of the officer.

If a judgment or execution has been satisfied, and that fact does not appear upon the execution or of record, the officer who levies the execution a second time would undoubtedly be protected, if he had no knowledge of the first payment; for he is bound to execute all process, regular in its forms, which is deliv