Lewis v. Palmer — 6 Wend. 367

Majority

p. 367

Lewis vs Palmer, Wadswobth and Benjamin.

Headnote

A justice, who issues a second execution after the first is satisfied, is a trespasser ; and it is no excuse that such second execution issued through the false representation of the plaintiff that the first was lost.

A constable acting under such second execution is not liable as a trespasser.

A recovery may be had for the full value of property sold under a void execution, although not removed by the purchaser.

This was an action of trespass de bonis asportatis, tried at the Allegany circuit in October, 1829, before the Hon. Addison Gardner, one of the circuit judges.

Various articles of the plaintiff’s property were sold by Benjamin, a constable of Allegany county, by virtue of an execution in favor of Palmer, issued by Wadsworth, a justice of the peace, on a judgment rendered by him in favor of Palmer against the now plaintiff and another person. A previous execution had been issued on the same judgment, which was endorsed satisfied by the plaintiff. Palmer obtained the second execution from the justice by representing to him that the first had been lost. Application was made on the trial to have the defendant Wadsworth discharged on the ground that the testimony given was not

p. 368

enough to charge him, so that he might be called as a witness for the other defendants. This the judge refused to allow, being of opinion that some evidence was given against the justice, although notice of the satisfaction of the first execution, previous to the issuing of the second, was not brought home to him, and observed that he should so instruct the jury. Among the property sold was a stack of hay, which was not removed by the purchaser, and the defendants requested the judge to charge the jury not to allow damages for its value, but only for the taking. He, however, charged the jury to assess damages for its value as well as for the other property sold ; and told them it was a fit case for exemplary damages, instructing them, however, to acquit the justice. The jury acquitted the justice and found the other defendants guilty, and assessed the damages at $128. The defendants moved for a new trial.

J. A. Collier, for the defendants;

G. C. Bronson, (attorney-general,) for the plaintiff.

By the Court,

In my opinion the judge' did not err in refusing to direct the acquittal of the defendant Wadsworth, for the purpose of having him sworn as a witness. The error, if any, was in charging the jury that enough had not been shewn to render him liable.. When the first execution was paid, the judgment was satisfied, and the justice had no more jurisdiction to issue a new execution than if no judgment had ever been entered. 5 Wendell, 240. He was probably deceived by the false representation of Palmer, but that does not excuse him from liability to the injured party. (The execution was not merely voidable, but absolutely void.) It was his duty to issue an execution ; this he had done, and he acted at his peril in issuing a second execution upon the suggestion of Palmer that the first was lost or destroyed.

There was no error in the direction given to the jury to find the value of the hay. It was not necessary that it should be removed to constitute a trespass. Assuming control over another’s properly is a trespass. The act of selling the hay

p. 369

without authority was a trespass. The justice, who issued the execution without authority, and the plaintiff, who procured it to be issued after his debt had been paid, were responsible for the injury sustained by the plaintiff.in this cause; but the officer, who acted by virtue of process regular upon its face, issued by a magistrate who had jurisdiction of the subject matter and of the process of execution, was justified in proceeding to execute it. It is the duty of a constable to execute process regular upon its face, and within the legitimate power of the officer issuing it, without first inquiring into the regularity of the previous proceedings. This subject has been recently under the consideration of the court, and received a full discussion by Justice Marcy, in the case of Savacool v. Boughton, 5 Wendell, 170.

I am of opinion that a new trial be granted ; costs to abide ábe event