Elder v. Morrison, 10 Wend. 128

Elder v. Morrison

10 Wend. 128 | N.Y. Sup. Ct. | 1833

By the Court,

Savage, Ch. J.

For the plaintiff in error, it is argued that the officer, when indemnified by the plaintiff in the execution, is bound to sell the property} and that by the revised statutes, 2 R. ¡S. 441, § 80, it is enacted that when a sheriff or other public officer shall find resistance, or have reason to apprehend it in the execution of any process delivered to him, he may command every male inhabitant of his county, or as many as he shall think proper, to assist him in overcoming such resistance, and in seizing and confining the resisters. The statute, further requires that the officer shall certify to the court, from which the process issued, the names ■of the resisters, to the end that they may be punished for their contempt of such court, id. § 81. And it is enacted that every person commanded by an officer to assist him, who ■shall refuse without lawful cause, shall be deemed guilty of a 'misdemeanor, and subject to fine and imprisonment, id. §.• 82. The inference drawn by the counsel for the plaintiff in error from these premises is, that the person who comes in aid of an officer to overcome resistance, is justified, whether the officer is or not justified; and that the question of title to the property Was not a proper subject of inquiry. On the part of the defendant in error, it is contended that if the principal be a trespasser, all persons acting in his aid or by his command are also trespassers; that the fair meaning of the statute is, that the officer shall be aided in the lawful execution of his *138process, and that such process must be against the individual whose person or property is attempted to be seized; that the process to authorize a justification must be against the person in possession of the property taken.

It is certainly true that if the officer be guilty of a trespass» those who act by his command or in his aid must be trespassers also, unless they are to be excused in consequence of the provision of the revised statutes. If a stranger comes in aid of an officer in doing a lawful act, as executing legal process» but the officer, by reason of some subsequent improper act, becomes a trespasser ab initio, the stranger does not thereby become a trespasser, Cro. Eliz. 181 ; Cro. Car. 446; but when the original act of the officer is unlawful, any stranger Who aids him will be a trespasser, though he acts by the officer’s command. Oystead v. Shed, 12 Mass. R. 511. The case in Massachusetts, just cited, was an action of trespass de bonis asportatis against Shed and three others; Shed and Fletcher justified as officers under writs of attachment, the two other defendants justified as servants of Fletcher; the plaintiff replied, and the defendants demurred to the replications. The court adjudged Fletcher’s plea bad, and the justification of the other two defendants failed of course; and their ignorance of the law, it was said, would ndt excuse their conduct or diminish in any degree the injury which the plaintiff sustained. The case of Leonard v. Stacey, 6 Mod. 140, is to the same effect. That was an action of trespass for entering the plaintiff’s house and taking away his goods. The defendant justified that he came in aid of an officer in execution of a writ of replevin. The plaintiff replied that he claimed property in the goods, and gave notice to the defendant before their removal. The court held the defendant was a trespasser ab initio, for though the claim should be made to the sheriff, yet if it be notified to him who comes in aid that claim is made, he ought to desist at his peril; thereby establishing the proposition, that if the officer is a trespasser, all those who act by his command or in his aid are also trespassers. Whenever a sheriff or constable has power to execute process in a particular manner, his authority is a justification to himself and all who come in his aid; but if his authority *139Is not sufficient to justify him, neither can it justify those who aid him. He has no power to command others to do an unlawful act: they are not bound to obey, neither by the common law nor the statute, and if they do obey, it is at their peril. They am bound ,to obey when his commands are lawful, otherwise not The only hardship in the case is, that they are bound to know the law. But that obligation is universal; ignorance is no excuse for any one. The counsel for the plaintiff in error insists that there is a difference between aiding in the original taking and in overcoming resistance. It seems to me there is no such distinction. If the taking was lawful, the resistance was unlawful; but if the taking was unlawful, the resistance was lawful. If the resistance was lawful, neither the officer nor those he commands to assist him can lawfully overcome that resistance. Nor does the fact of the officer’s being indemnified, confer on him any authority which he had not without such indemnity ; he may thereby be compelled to do an illegal act in selling the property of strangers to the execution, but he is a trespasser in doing so, as are allothers who aid him.

In any view of the subject which I can take, I am of opinion that the decision of the court of common pleas was correct, and the judgment should be affirmed.

Judgment affirmed.