Inman v. McNeil
New York Supreme Court
Tee plaintiff’s intestate recovered judgment against one John C. Richards, in justices’ court, on which execution was issued and delivered to the defendant McNeil, a constable. The constable levied upon property of the defendant in execution sufficient to satisfy the same, but released his levy and returned the execution nulla bona. Thereupon the plaintiff brought this suit for a false return.
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Tee plaintiff’s intestate recovered judgment against one John C. Richards, in justices’ court, on which execution was issued and delivered to the defendant McNeil, a constable. The constable levied upon property of the defendant in execution sufficient to satisfy the same, but released his levy and returned the execution nulla bona. Thereupon the plaintiff brought this suit for a false return. Afterwards an appeal was taken by the defendant in execution; the judgment was reversed. The constable (the defendant in this action), upon motion, was permitted to set up the fact of the reversal of…
1Opinion of the CourtLandon, J.
It is necessary for the plaintiff to prove a judgment upon which the execution issued. Whatever right the plaintiff has rests upon that judgment (3 Denio, 45; 7 Hill, 35). The officer has been permitted, when sued for a *152false return, to show that the execution was issued upon avoid judgment (Allen agt. Ward, 8 Mass., 79; and cases cited in Earl agt. Camp, 16 Wend., at page 568). If there is no judgment there is no loss and if the defendant McReil has not injured the plaintiff there ought to be no recovery. A reversed judgment is no judgment. But it is urged that when che execution was issued…
2Cases cited1 opinion
- McDonald v. BunnNew York Supreme Court · 1846
3Cited by1 opinion
- Knapp v. SweetNew York Supreme Court · 1890