Barker v. Mathews

1 Denio 335

• Court: Court for the Trial of Impeachments and Correction of Errors
• Decided: July 15, 1845
• Status: Published

Opinion

By the Court, Beardsley, J.

There is no precedent foi this action, and as the Jaw has already provided well known and appropriate remedies for all parties, in such casos, there is no occasion to devise a new one.

The constable who levied the plaintiff’s execution is responsible to him for the value of the property levied on. It will be no defence to the constable that the property was fraudulently taken from his custody by the defendant in the execution: fez such taking the constable may have his action against the defendant, and thus indemnify himself. In this manner the defendant will be made to answer for his own wrong, to the officer, and the latter, in turn, will respond to the plaintiff. These remedies exist, and they have been found fully commensurate to such injuries.

, This case is not like Tates v. Joyce, (11 John. R. 136.) In that case, the judgment owned by the plaintiff gave him, as the court held, a legal lien on the real property to which the injury complained of was done. The sheriff had no right whatever to that property; he had power to sell, but nothing more. His seizure of real estate on execution, and advertising it for sale, gives him no title to the property, nor any lien upon it; he therefore, could have maintained no action for the injury done by the defendant to the property which the sheriff was about to sell, nor was the sheriff responsible to the plaintiff for what had been done.

Here the constable had a special property in the goods levied upon, and could have brought an action for the defendant’s wrongful act. But the plaintiff had no lien upon or property in the goods, and therefore he can have no action for the alleged injury.

The cases are plainly distinguishable, arid this judgment should be affirmed.

Judgment affirmed.