Mills v. Young

23 Wend. 313

• Court: New York Supreme Court
• Decided: May 15, 1840
• Status: Published

Opinion

Bronson, J.

By the Court, Although it was formerly held that a deputy sheriff might serve a capias ad respondendum in his own favor where no bail was required, Bennett v. Fuller, 4 Johns. R. 486, it is questionable whether he can do so now. 2 R. S. 441, § 84. But whatever may be the rule in relation to mesne process, it is clear that the sheriff cannot execute final process in his own favor. I find no authority for such a practice, and to allow it would be opening a wide door to abuse and oppression.

The note was'obtained by fraud and unauthorized coercion. The plaintiff concealed the fact that he came as the party in interest, and asserted the right, which he did not possess, of acting as a public officer. He threatened to levy the execution and sell property if the debt was not settled, and took his fees on the execution. The payment of a note obtained by such means ought not to be enforced. The plaintiff must resort to such remedy as he may have on the judgment which has been assigned to him.

New trial granted;