Westervelt v. Jacquelin

1 Ant. N.P. Cas. 320

• Court: The Superior Court of the City of New York and Buffalo
• Decided: June 15, 1835
• Status: Published

Opinion

Oakley, J.

I do not think the present action maintainable. I shall, therefore, direct the jury to find for the defendant.

Verdict for defendant.

Upon an application to. set aside this verdict, the court refused the motion, and ruled

1. That there could be no doubt but that the sheriff, by his levy, acquired a special property, but that this was limited in extent to the duty he had to perform under the execution.

2. That, when his possession is disturbed, his remedy is in trespass or trover. That, being bound by the execution to sell according to law, he must perform this duty strictly, the defendant being as much interested in it, by reason of the surplus which would come to him, as the plaintiff, and, therefore, an affirmance of a sale, made by a third party, would necessarily be an act of the plaintiff done without consulting the defendant.

3. That where the sale could be considered the act of an agent, then the sheriff might affirm. That such was the case in 1 D. & R. 307, where assumpsit was held to lie,

Mlingwood and Anthon, for plaintiff.

Gutting, for defendant.