1866.

Nov. 14.

A declaration

stated that A.

issued against

B. a writ of summons, specially indorsed for 28. that B. paid A. 107. on account: that A. afterwards maliciously, and

without reasonable or

HUFFER V. ALLEN and Another.

DECLARATION. That the plaintiff was indebted to

the defendants in the sum of 287. Os. 9d., and the defendants commenced an action against the plaintiff in the Court of Queen's Bench for the recovery of the said debt, by issuing a writ of summons against the plaintiff, specially indorsed, according to the Common Law Procedure Act, 1852, for 281. Os. 9d., and caused the plaintiff to be served therewith; and thereupon, and before appearance was entered, and probable cause, before judgment was signed, the plaintiff paid the defendants, and the defendants accepted and received from the plaintiff, the sum of 10%. on account of the said debt, and after such payment and receipt the defendants wrongfully and maliciously, and without any reasonable or probable cause, caused and procured judgment to be signed in the compelled him, said action against the plaintiff, for default of appearance, for the full amount of the debt of 287. Os. 9d. and 47. costs

signed judg

ment for default of appearance, for 281., and arrested the defendant under a ca. sa. for that amount, and

in order to

obtain his

discharge, to pay 351. On demurrer to the declaration:-Held,

that the action

was not main

tainable, inasmuch as the judgment operated as an

(as appears by the record of the said judgment now in the said Court), without giving credit or making any allowance or deduction for or in respect of the said sum of 101. so paid as aforesaid, the said 287. Os. 9d. being the whole amount of the said debt for the recovery of which the action was brought as aforesaid, and the said 47. being the full amount of costs to which the now defendants would be and were by law entitled; and thereby the now defendants wrongfully and maliciously, and without any reasonable or proThe proper bable cause whatsoever, caused and procured the said judgment to be signed for the recovery of a debt wherein

estoppel, and precluded the plaintiff from averring that 281. was not due.

course would

have been to

apply to the

Court or a

Judge to reduce the judgment to the amount actually due.

the sum recovered exceeded 201. exclusive of costs; and the now defendants wrongfully and maliciously, and without reasonable or probable cause whatsoever, caused and procured a writ of ca. sa. to be issued out of the Court of Queen's Bench in the said action upon the said judgment, directed to the sheriff of Worcestershire, commanding him to take the now plaintiff to satisfy the said debt of 287. Os. 9d. and 47. costs, together with interest, &c. And the now defendants wrongfully, &c., caused and procured the said writ of ca. sa. to be indorsed to satisfy 321. Os. 9d., and 17. 8s. costs of execution and interest, &c., and caused and procured the said writ so indorsed to be delivered to the said sheriff to be executed. And the now defendants afterwards wrongfully, &c., caused and procured the said sheriff, under the said writ, to arrest the now plaintiff and detain him, and the now plaintiff was detained in custody under the said writ for a long time, and until the plaintiff was compelled by the defendants, in order to procure his discharge from such custody, to pay 35l. 19s. 3d., &c. : whereas at the said several times of signing judgment, and of suing out the said writ of ca. sa., and of indorsing the same, and of delivery thereof to the sheriff, and of the arrest and detention of the plaintiff thereunder, a much less sum than 281. Os. 9d., that is to say, 187. Os. 9d., and no more, was due and owing from the plaintiff, &c.

Demurrer, and joinder therein.

Hayes, Serjt. (Grantham with him), in support of the demurrer. The plaintiff is estopped by the judgment from alleging that he paid part of the debt before the judgment was signed. So long as a judgment remains unimpeached it is conclusive evidence of the amount of the debt. The plaintiff relies on Hodges v. Callaghan (a)

(a) 2 C. B. N. S. 306.

1866.

HOFFER

v.

ALLEN.

as an authority that where a person issues a writ specially indorsed under the 25th section of the Common Law Procedure Act, 1852, and afterwards receives payments on account of the debt, he is not entitled, in default of appearance, to sign judgment, under the 27th section, for the amount indorsed on the writ, but only for the balance after giving credit for the payments. There the amount for which the judgment was signed was reduced, by a Judge's order, to the sum actually due, which was under 201.; here the judgment subsists in its original state for an amount which entitled the defendants to issue a ca. sa. upon it. [Channell, B.-Signing judgment, though done by the party, is the act of the Court.] In Gilding v. Eyre (a) the judgment was properly signed, and the ground of action was that the defendant maliciously employed the process of the Court to extort from the plaintiff money which he had paid, and which was no longer due on the judgment. Here the plaintiff should have applied to a Judge to reduce the judgment by the amount paid on account. Suppose the plaintiff had sued the defendants for goods sold, and they had pleaded this judgment by way of set-off, could the plaintiff have replied that before judgment he paid 10% on account of the debt, and that the defendants wrongfully and maliciously, and without reasonable or probable cause, signed judgment for the full amount of the debt? Having allowed the judgment to remain in force, the plaintiff is precluded from bringing any action.

H. Matthews (with whom was Griffits), in support of the declaration. First, the judgment is irregular; and it is admitted by the demurrer that judgment was signed maliciously, and without reasonable or probable cause. Hodges v. Callaghan (b) is an express authority that in signing (a) 10 C. B. N. S. 592. (b) 2 C. R. N. S. 306.

judgment under the 27th section of the Common Law Procedure Act, 1852, it is the duty of the plaintiff to give credit for sums paid on account. [Bramwell, B.— That must mean morally. Suppose a defendant applied to a Judge to reduce a judgment on the ground that before it was signed he had made payments on account of the debt, and the plaintiff denied that any payments had been made; the only course would be to allow the defendant to plead them on payment of costs. Therefore, in strictness this is not an irregular judgment; but it is, nevertheless, a judgment which the plaintiff ought not to have signed.] The plaintiff has abused the process of the Court by signing judgment for more than was due in order to take the defendant in execution.-Secondly, the judgment is no estoppel. An estoppel only arises where judgment is signed after the defendant has pleaded, not in cases where it is signed under the provisions of the 27th section of the Common Law Procedure Act, 1852. Before that Act, a plaintiff could not obtain judgment unless he filed or delivered a declaration; and if the defendant made payments after action brought, he could plead them in bar of the further maintenance of the action, and the plaintiff could only have judgment for the balance actually due. This must be regarded as a judgment obtained by fraud. It is not necessary for the plaintiff to allege that he had obtained his discharge by order of the Court or a Judge, so as to shew that the proceedings had terminated in his favour: Gilding v. Eyre (a). The gravamen is that an extortion was practised upon the defendant, by arresting him for a greater sum than was due. If the judgment had been reduced it is questionable whether the declaration would have been good. Unless this action can be maintained,

(a) 10 C. B. N. S. 592.

1866.

HUFFER

v.

ALLEN.

1866.

HUFFER

v.

ALLEN.

the plaintiff is without remedy, for an action for money had and received will not lic: De Medina v. Grove (a).

Hayes, Serjt., was not called upon to reply.

KELLY, C. B.-I am of opinion that this action cannot be maintained, and that our judgment must be for the defendants. I say so with regret, because if the defendants, at the time of signing judgment, were aware that their claim had been reduced by payment to a sum less than 201., the act of signing judgment for the original amount of their debt, without giving credit for the payment, was altogether unjustifiable.

But we must decide the question whether this judgment, which in contemplation of law is the act of the Court, is not an estoppel, and an insuperable bar to this action. I am of opinion that it is. In ancient language, a judgment is, as between the parties," an evidence of uncontrollable verity," and it is not competent for either of them to aver against it.

The facts are these:-The now defendants brought an action against the now plaintiff for 281. The plaintiff, before appearance, paid 107. on account, but took no further step. The now defendants then signed judgment, not for the sum really due, but for the original debt of 287., and took the now plaintiff in execution for that He then brings this action against the now defendants for maliciously, and without reasonable or probable cause, signing the judgment for 281. I am of opinion that the action is not maintainable, upon this simple principle, that whilst the judgment stands it cannot be contradicted, nor any averment made that the debt due at the time the judgment was signed was not 287., but a less sum.

amount.

(a) 10 Q. B. 152. 170.