Campbell v. Neely — 2 Wend. 559

Majority

p. 559

Campbell vs. Neely.

Headnote

An action on obstructing *°r the execution of mesne process cannot be maintained, unless thé plaintiff aver and prove that he had a cause of action agatast the person whose arrest was prevented.

Error on certiorari. Neely sued Campbell in a justice’s court, and declared against him in case, for interrupting an

p. 560

officer in the service of a warrant in a civil action, which he jjad procure(j to be issued by a justice at his suit against one Adams, by secreting Adams, and aiding and assisting him to elude and escape the service of the process. Testimony was adduced by both parties as to the acts of Campbell complained of, but no evidence was given by the plaintiff below that he had any cause of action whatever against Adams. The justice gave judgment for the plaintiff for $12,50. This judgment was rendered by the justice in 1821.

W. Fraser, for plaintiff in error.

A. Fraser, for defendant.

(Mr. Justice Mercy, after examining the evidence set forth in the return of the justice, and coming to the conclusion that the acts done by the defendant did not subject him to an action, proceeded as follows :) But, admitting the proof to be sufficient to establish the fact that the defendant did obstruct the officer in the execution of the warrant, yet the plaintiff below failed to shew enough to entitle him to recover. The party who brings his action for obstructing the execution of mesne process must prove as much to entitle him to recover as he would be obliged to shew if he had brought his action for an escape or rescue on similar process. In an action for an escape, the plaintiff must aver and prove that he had a cause of action against the person who has been suffered to escape. (2 Lev. 85. 4 T. R. 611. 2 Saund. 151.) The law is the same where the action is for a rescue on mesne process. (Buller’s N. P. 62. 2 Chitty’s Pl. 298, 9.) There was no proof in the court below that the plaintiff had any cause of action against Adams. Until this was established, he had no right to recover against the defendant,

Judgment reversed,