Lewis v. Palmer

6 Wend. 367 | N.Y. Sup. Ct. | 1831

By the Court,

Savage, C. J.

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 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