Curia, per
Sutherland, J.
If the process, on the face of it, did not authorize the arrest of the plaintiff, then it was irregular and void as against him, and can afford no justification to any of the parties concerned in the issuing or execution of it. In such a case, it is not-necessary that the process should be set aside before an aetion can be sustained ; nor is it material out of what jurisdiction it purports to have been issued. The defendants justify the arrest of Daniel S. Griswold, under an execution against Samuel S. Griswold. The execution itself may be regular; there may be no ground for setting it aside. A. is arrested by the defendants, and calls upon them to show their authority for the arrest. They produce as their authority, an execution against B., issued out of the circuit court of thé U. S. for the southern district of New-York. We do not question the jurisdiction of that court, nor the [461]*461validity or regularity of any of its proceedings, when we decide that this is no justification for the arrest.
It is settled by repeated adjudications, that an officer cannot justify the taking of the goods (much more the person) of A., under process against B., although it be averred that A. and B. are the same person ; unless the party appeared and had an opportunity of pleading the misnomer in abatement; but omitted to do it. Thus, in Cole v. Hindson and others, (6 T. R. 234,) the goods of Aquila Cole were taken under a distringas against Richard Cole. To an action of trespass brought for the taking, the defendants pleaded that the plaintiff, Aquila Cole, being indebted to two of them, they sued out against the said Aquila, by the name of Richard, a writ; and the said Aquila not appearing, &c., a distringas was issued, commanding the sheriff to distrain Richard Cole, meaning the said Aquila Cole, &c. Upon demurrer, the plea was held to be bad. And lord Kenyon remarked, that the defendants were not justified in seizing the goods of Aquila Cole, under a dis-tringas against Richard Cole, and that the averment in the plea, that Aquila and Richard are the same person, did not assist them, as they had not also averred that the plaintiff was known as well by one name as by the other.
So in Shadgett v. Clipson, (8 East, 328,) Josiah Shadgett, the plaintiff, was arrested upon a latitat issued against him, wherein he was called by the name oí John Shad-gett. The plea averred that the writ was issued against Josiah, by the name of John. This was held to be no justification to the officer who made the arrest, in an action for false imprisonment. Lord Ellenborough says, process ought regularly to describe the party against whom it is meant to be issued ; and the arrest of one person cannot be justified under a writ sued out against another.
In Wilkes v. Lorck, (2 Taunt. 400,) it was held by Lawrence, J. that the sheriff was liable to an action of false imprisonment, for arresting a defendant by a wrong Christian name.
[462]*462Scandover v. Warne, (2 Campb. 270,) and Morgans v. Bridges, (1 B. & A. 647,) are to the same effect.
In Crawford v. Satchwell, (2 Str. 1218,) it was held that if a person sued by a wrong Christian name, omits to take advantage of the misnomer, by a plea in abatement, but suffers judgment to be entered, he shall not have an action of false imprisonment against the sheriff, for arresting him upon a capias ad satisfaciendum, issued upon the judgment. Lord Kenyon, in Cole v. Hindson, already-cited, adverts to this case, and says, the party had appeared in the original action, and done an act to avow that he was sued by the right name. That was also the case in Smith v. Bowker, (1 Mass. Rep. 76.)
No distinction is taken in these cases, between an arrest upon mesne and final process, and none is perceived by the court. In this case, the process was in the nature of an attachment, and the plaintiff has had no opportunity of taking advantage of the misnomer, by plea in abatement.
The case of Reynolds v. Corp, (3 Caines, 267,) is not in collision with the cases already adverted to. Reynolds had been surrendered by his bail, and was subsequently-discharged by a supersedeas, for want of being charged in execution in due time. A ca. sa. was afterwards issued upon the judgment, on which he was taken and imprisoned ; for which he brought an action of false imprisonment against the plaintiff in the execution, and the attorney who issued it. It was held that the action would not lie ; the judgment remaining valid, and nothing appearing on the record to show that a ca. sa. could not regularly be issued. The court say, the process was voidable only, and not void ; and nothing appearing on the face of the record or of the execution, to show that it had been issued irregularly, the plaintiff should have applied to the court, and had the writ set aside before he brought his action ; that they would not decide upon its validity in that collateral way. {Par Kent, Ch. J.)
Thompson, J. says, “ 1 am inclined to think the execution is voidable only. It appears regular upon the face of it; it is warranted by the judgment, and is to be avoided [463]*463by some matter dehors the record, and which, I think, cannot be taken advantage of in this collateral way.”
In the case now before us, it is apparent on the face of the process, that it did not authorize the arrest of Daniel S. Grisivold, the present plaintiff. There is no necessity, therefore, for any inquiry dehors the writ itself; and an action may be sustained by the plaintiff for the arrest, without having procured the writ to be set aside.
But it was also contended by the plaintiff’s counsel, that the order itself, in obedience to which the writ purports to have been issued, and which is recited in it, was absolutely void ; 1. As having been made at the chambers of the judge in vacation ; and 2. As being against the settled and established mode of proceeding in such cases in the English court of chancery.
The first objection seems to have no foundation in fact. There is nothing on the face of the order, as recited in the writ, which shows where it was made ; and it is expressly recited to have been made in the circuit court for the southern district of New-York.
But it is said that the 21 st of February, when the order was made, was not a day in term, and it must, therefore, have been made at chambers. The time for the commencement of the terms of that court, is fixed by law ; but 1 am not aware that the duration of the terms is limited. The 21 st of February may, therefore, have been a day in term.
As to the other ground of objection, that the order is not in conformity to the established mode of proceeding in courts of equity, it is a sufficient answer, to say that that is a question not to be tried collaterally in an action at law.
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Curia, per
Sutherland, J.
If the process, on the face of it, did not authorize the arrest of the plaintiff, then it was irregular and void as against him, and can afford no justification to any of the parties concerned in the issuing or execution of it. In such a case, it is not-necessary that the process should be set aside before an aetion can be sustained ; nor is it material out of what jurisdiction it purports to have been issued. The defendants justify the arrest of Daniel S. Griswold, under an execution against Samuel S. Griswold. The execution itself may be regular; there may be no ground for setting it aside. A. is arrested by the defendants, and calls upon them to show their authority for the arrest. They produce as their authority, an execution against B., issued out of the circuit court of thé U. S. for the southern district of New-York. We do not question the jurisdiction of that court, nor the [461]*461validity or regularity of any of its proceedings, when we decide that this is no justification for the arrest.
It is settled by repeated adjudications, that an officer cannot justify the taking of the goods (much more the person) of A., under process against B., although it be averred that A. and B. are the same person ; unless the party appeared and had an opportunity of pleading the misnomer in abatement; but omitted to do it. Thus, in Cole v. Hindson and others, (6 T. R. 234,) the goods of Aquila Cole were taken under a distringas against Richard Cole. To an action of trespass brought for the taking, the defendants pleaded that the plaintiff, Aquila Cole, being indebted to two of them, they sued out against the said Aquila, by the name of Richard, a writ; and the said Aquila not appearing, &c., a distringas was issued, commanding the sheriff to distrain Richard Cole, meaning the said Aquila Cole, &c. Upon demurrer, the plea was held to be bad. And lord Kenyon remarked, that the defendants were not justified in seizing the goods of Aquila Cole, under a dis-tringas against Richard Cole, and that the averment in the plea, that Aquila and Richard are the same person, did not assist them, as they had not also averred that the plaintiff was known as well by one name as by the other.
So in Shadgett v. Clipson, (8 East, 328,) Josiah Shadgett, the plaintiff, was arrested upon a latitat issued against him, wherein he was called by the name oí John Shad-gett. The plea averred that the writ was issued against Josiah, by the name of John. This was held to be no justification to the officer who made the arrest, in an action for false imprisonment. Lord Ellenborough says, process ought regularly to describe the party against whom it is meant to be issued ; and the arrest of one person cannot be justified under a writ sued out against another.
In Wilkes v. Lorck, (2 Taunt. 400,) it was held by Lawrence, J. that the sheriff was liable to an action of false imprisonment, for arresting a defendant by a wrong Christian name.
[462]*462Scandover v. Warne, (2 Campb. 270,) and Morgans v. Bridges, (1 B. & A. 647,) are to the same effect.
In Crawford v. Satchwell, (2 Str. 1218,) it was held that if a person sued by a wrong Christian name, omits to take advantage of the misnomer, by a plea in abatement, but suffers judgment to be entered, he shall not have an action of false imprisonment against the sheriff, for arresting him upon a capias ad satisfaciendum, issued upon the judgment. Lord Kenyon, in Cole v. Hindson, already-cited, adverts to this case, and says, the party had appeared in the original action, and done an act to avow that he was sued by the right name. That was also the case in Smith v. Bowker, (1 Mass. Rep. 76.)
No distinction is taken in these cases, between an arrest upon mesne and final process, and none is perceived by the court. In this case, the process was in the nature of an attachment, and the plaintiff has had no opportunity of taking advantage of the misnomer, by plea in abatement.
The case of Reynolds v. Corp, (3 Caines, 267,) is not in collision with the cases already adverted to. Reynolds had been surrendered by his bail, and was subsequently-discharged by a supersedeas, for want of being charged in execution in due time. A ca. sa. was afterwards issued upon the judgment, on which he was taken and imprisoned ; for which he brought an action of false imprisonment against the plaintiff in the execution, and the attorney who issued it. It was held that the action would not lie ; the judgment remaining valid, and nothing appearing on the record to show that a ca. sa. could not regularly be issued. The court say, the process was voidable only, and not void ; and nothing appearing on the face of the record or of the execution, to show that it had been issued irregularly, the plaintiff should have applied to the court, and had the writ set aside before he brought his action ; that they would not decide upon its validity in that collateral way. {Par Kent, Ch. J.)
Thompson, J. says, “ 1 am inclined to think the execution is voidable only. It appears regular upon the face of it; it is warranted by the judgment, and is to be avoided [463]*463by some matter dehors the record, and which, I think, cannot be taken advantage of in this collateral way.”
In the case now before us, it is apparent on the face of the process, that it did not authorize the arrest of Daniel S. Grisivold, the present plaintiff. There is no necessity, therefore, for any inquiry dehors the writ itself; and an action may be sustained by the plaintiff for the arrest, without having procured the writ to be set aside.
But it was also contended by the plaintiff’s counsel, that the order itself, in obedience to which the writ purports to have been issued, and which is recited in it, was absolutely void ; 1. As having been made at the chambers of the judge in vacation ; and 2. As being against the settled and established mode of proceeding in such cases in the English court of chancery.
The first objection seems to have no foundation in fact. There is nothing on the face of the order, as recited in the writ, which shows where it was made ; and it is expressly recited to have been made in the circuit court for the southern district of New-York.
But it is said that the 21 st of February, when the order was made, was not a day in term, and it must, therefore, have been made at chambers. The time for the commencement of the terms of that court, is fixed by law ; but 1 am not aware that the duration of the terms is limited. The 21 st of February may, therefore, have been a day in term.
As to the other ground of objection, that the order is not in conformity to the established mode of proceeding in courts of equity, it is a sufficient answer, to say that that is a question not to be tried collaterally in an action at law. If the order was unadvisedly made, against the established practice, not only of the courts of equity in England, but of the very court in which it was made, as the objection seems to assume, application should have been made to that court, to vacate or set it aside.
The court had jurisdiction of the person of the plaintiff, and of the subject matter in relation to which the order was made ; for it was made in relation to a suit pending ⅛ [464]*464that court, in which the plaintiff wTas a party. The regularity of the order is not to be tried or inquired into in this court. Superior courts, either of law or equity, will not interfere with each other’s proceedings, on the ground of irregularity. (3 John. Ch. Rep. 275.) And cases are to be found, in which courts of equity have enjoined suits at law, brought for executing the process of those courts irregularly issued. (Baily v. Devereux, 1 Vern. 269.) In Frowd v. Lawrence, (1 Jac. & Walk. 636,) an attachment had been irregularly issued, upon which the defendant was arrested. He applied to the court of chancery, and procured it to be set aside ; and then brought his action at law for the false imprisonment. The court of chancery, after much deliberation and inquiry, stayed the suit at law ; holding, that though the party might be entitled to compensation for the arrest, he must seek it by application to that court, and not by suit ai law. The case in 1 Vernon, 269, and also May v. Hook, before lord Bathurst, cited in Dove v. Dove, (2 Dick. 619,) were relied upon as authorities for this decision. It is not necessary for us to express an opinion upon the principle assumed in these cases. They are cited merely for the purpose of showing the extent to which courts have gone, in denying the right or propriety of one court to inquire into, or try the regularity of the process or proceedings of another court of equal dignity.
The process in this case was undoubtedly intended as an attachment for a contempt in disobeying a previous order of the court. It recites that previous order, and that the plaintiff had neglected to comply with it; and therefore commands the marshal to take his body, &c. It may not be formal. The court out of which it issued, might, upon application, vacate or modify the order, or the attachment. But I see no ground for saying that either the one or the other is absolutely void.
The attachment, on the face of it, did not authorize the arrest of the plaintiff ; and on that ground, and that alone, I think the action was technically sustained ; and that the plaintiff ought not to have been nonsuited.
Nonsuit set aside.