34 Pa. 201 | Pa. | 1859
The opinion of the court was delivered by
In Wilson v. Ellis, 4 Casey 238, afterwards recognised in Freeman v. Smith, 6 Id. 264, it was determined that trespass would lie against a sheriff or constable for neglecting or refusing to give the defendant in the writ the benefit of the $300 act, when it had been properly demanded. It was so ruled, upon the principle, that the abuse of authority, under the writ, made the officer a trespasser ab initio, and placed him in the same situation as if the writ had been void; for he was not entitled to use it as a justification, in consequence of his disregard of the requirements of the law in executing it. There are many authorities for this, not to be doubted or disputed. But it was not determined that case would not lie under such circumstances. Trespass and case assimilate as remedies often. And this is true when they approach the dividing line, as they often do, so closely as scarcely to be distinguishable from each other, and where no evil is perceptible from adopting either as a remedy. But this does not obliterate the distinction ; for, as they recede from the point of assimilation, the distinction becomes manifest, and the form of action to be adopted obvious; such as trespass for a wilful injury to property; and case for injury by neglect; or trespass for a battery, and case for slander, and the like.
There is no doubt but that trespass in cases like the present will lie, but it is sustained by the employment, to some extent, of a fiction; namely, the want of a writ to justify under, because the party has abused it. It is, however, obvious that the more natural and direct remedy would have been an action, founded on the breach of duty in refusing or neglecting to allow the debtors’ demand of the provisions of the exemption law. For a neglect of duty, case is generally the remedy. In the execution of process, the law requires the officer to appraise, and allow the debtor to elect and retain property to the extent of $300, if there has been a demand. This is a duty enjoined, a breach of which occasions the injury, and for such an injury occasioned in such a way, no doubt, case will lie, as for a breach of duty. The argument that because trespass may be sustained, case cannot, is sound to the extent only of those manifest indications which exist in force directly applied, and where it is not so: there the distinction is clear. The remedies are distinct, and must generally be followed. It is true, however, that case is a more extensive remedy than
We are of opinion that case would lie for the injury complained of here, or that trespass would have lain; and as the learned judge of the Common Pleas ruled that the action was well brought, the judgment must be affirmed.
Judgment affirmed.
