People v. Hubbard
New York Supreme Court
The defendant Was indicted and tried in the Oneida general sessions for an assault and battery committed on the sheriff of Oneida while engaged in the execution of his office. The sheriff held a fi. fa. against Schuyler Hubbard and four other persons, which bad been issued on a judgment for damages and costs, in an action for a joint tort.
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The defendant Was indicted and tried in the Oneida general sessions for an assault and battery committed on the sheriff of Oneida while engaged in the execution of his office. The sheriff held a fi. fa. against Schuyler Hubbard and four other persons, which bad been issued on a judgment for damages and costs, in an action for a joint tort. After having made a levy on the property of Hubbard and the other defendants, to a sufficient amount, the sheriff deemed it his duty as between the defendants to increase his levy upon S. Hubbard, and proceeded to his house for that purpose. S. Hub-hard…
1Opinion of the Court
By the Court,
Cowen, J.
It is not at all surprising that the general sessions gave the direction to the jury which was given in this case. The surprize would have been at a direction the other way; for the English books of practice abound with the distinction, that though the sheriff having a fi. fa. be a trespasser in breaking the outer door of the debtor’s house, yet when he is once in the house, though he entered illegally, and for the purpose of taking the debtor’s goods, and though he would be liable to an action of trespass for the entry, yet the levy is lawful. It follows, if that be the…
2Cited by1 opinion
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