West v. Tuttle

11 N.Y. 639

• Court: New York Supreme Court
• Decided: May 15, 1834
• Status: Published

Opinion

By the Court,

Savage, Ch. J.

On the trial, the judge nonsuited the plaintiffs, on the ground that by taking judgment, against the Owner of the vessel, and not against the vessel itself, he had discharged the sheriff from his liability. In this the judge was clearly wrong. The record shows a proceeding commenced by attachment against a vessel; the owner appeared and pleaded, and judgment was entered against him, and not against the vessel. It was the duty of the sheriff to have kept the vessel, or to have taken a bond ; he has done neither. Had he kept the vessel the plaintiff would have levied his execution upon it. He should not have discharged the vessel without a sufficient bond. The record shows what the cause of action was, and the proof offered was sufficient to sustain the action.

Nonsuit set aside and new trial granted; costs to abide the event.