Majority
p. 174Tower against Wilson, Sheriff of Washington.
Headnote
In an action for levying on v'rong propei-4y, to warrant a certificateTHIS was an action of trespass, brought by the plaintiff for an illegal levy on the plaiatift s property whilst m ms own hand's, by a deputy of the defendant under a fieri fa- . , etas, against another pei sou.
p. 175
that the trespass was wilful and malicious, it must appear either that the execution was served bj him, or with his knowledge, for a constructive trespass ch.es not make it voluntary.
The judge considering that when the property of a third person was taken wrongfully in execution, the malice was an inference of law, arising on the facts, and that the defendant was responsible for the conduct of his deputy, had certified the trespass to be wilful and malicious.
Shephard now moved to have the certificate vacated.
Take the effect of your application. The trespass here was not voluntary in the defendant, for he is sued for an act of his deputy in taking wrong property on a fi. fa. when he knew nothing of it himself. To make the case of Stiles and Hathway a pply, the trespass must be voluntary in fact, and not merely by construction. In the present instance it is impossible to say the act was voluntary in the defendant.