Hartwell v. Root
New York Supreme Court
IN ERROR, to the Court of Common Pleas of Ontario county. Root brought an action of trespass against Hart-well, in the Court below, for taking and carrying away a pair of horses, &c., belonging to R. The defendant pleaded not guilty. On the trial, it appeared that the defendant, as deputy sheriff, in May, 1819, levied on a pair of horses in possession of the plaintiff, and sold them at the sheriff’s sale.
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IN ERROR, to the Court of Common Pleas of Ontario county. Root brought an action of trespass against Hart-well, in the Court below, for taking and carrying away a pair of horses, &c., belonging to R. The defendant pleaded not guilty. On the trial, it appeared that the defendant, as deputy sheriff, in May, 1819, levied on a pair of horses in possession of the plaintiff, and sold them at the sheriff’s sale. The plaintiff proved that he purchased the horses in March previous, of David Conkling, for 190 dollars. ■ The defendant proved that he took and sold the horses, as deputy sheriff of the…
1Opinion of the CourtWoodworth, J.
The question in this cause, is, whether it is not to be presumed, that the defendant made a levy on the property of ConkUng?
The Court below decided, that the matters given in evidence were not sufficient to bar the plaintiff’s action. The officer acted under his oath of office. His duty required him to make a levy; and it does not appear that ConkUng had any other property, beside the horses, to satisfy- the execution. In such a case, in the absence of positive proof, and against a public officer, the circumstances offered a fair and reasonable presumption, that a levy had been legally made.
Th…
2Cited by46 opinions
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