Campbell v. Neely

2 Wend. 559

Opinion

By the Court, Marcy, J.

(Mr. Justice Mercy, after examining the evidence set forth in the return of the justice, and coming to the conclusion that the acts done by the defendant did not subject him to an action, proceeded as follows :) But, admitting the proof to be sufficient to establish the fact that the defendant did obstruct the officer in the execution of the warrant, yet the plaintiff below failed to shew enough to entitle him to recover. The party who brings his action for obstructing the execution of mesne process must prove as much to entitle him to recover as he would be obliged to shew if he had brought his action for an escape or rescue on similar process. In an action for an escape, the plaintiff must aver and prove that he had a cause of action against the person who has been suffered to escape. (2 Lev. 85. 4 T. R. 611. 2 Saund. 151.) The law is the same where the action is for a rescue on mesne process. (Buller’s N. P. 62. 2 Chitty’s Pl. 298, 9.) There was no proof in the court below that the plaintiff had any cause of action against Adams. Until this was established, he had no right to recover against the defendant,

Judgment reversed,