Collins v. Ferris

14 Johns. 246

Opinion

Per Curiam.

This case comes before the court on a writ of error to the common pleas of Chenango county, and the question submitted to this court arises under a bill of exceptions tendered to the court below. The action was trespass, de bonis asporlalis, against the defendant below for issuing an attachment under the 33d section of the 25 dollar act, (1 R. L. 398.,) without having any other proof of the departure of the defendant than the oath of the plaintiff in the attachment. It is unnecessary here to determine whether the justice, by this procedure, made himself a trespasser or not ;

(a) for the judgment must be reversed for misdirection to the jury, as to the rule of damages.

In the attachment, the arms and accoutrements of the defendant were expressly excepted. But the constable, notwithstanding, attached a "military coat and cap, though the same were not taken out of the possession of the former when found. The court below charged the jury that the plaintiff was entitled to recover against the justice damages for the taking and detaining the coat and cap. In this direction the court below erred. The justice neither commanded nor ratified this act; but, on the contrary. all such articles were expressly excepted out of the attachment. If any damages are to be recovered for such taking, the justice cannot be responsible. Recourse must be had to the constable. Although the damages recovered on this account were probably small, yet, as it is very evident the justice acted in good faith, and under a belief that he was complying with the requisites of the act, he is justifiable in defending himself under all legal, objections, though they may appear somewhat technical. The judgment of the court below must be reversed.

Judgment reversed,'

Vide, Vosburgh v. Welch, 11 Johns. Rep. 175.