Campbell v. Phelps
Massachusetts Supreme Judicial Court
This was an action of the case against the defendant, as sheriff of the county of Hampden, for an alleged misfeasance of one King, his deputy, in taking the plaintiff’s goods, and selling them upon an execution in favor of Thomas Sheldon, against the Chester Glass Company.
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This was an action of the case against the defendant, as sheriff of the county of Hampden, for an alleged misfeasance of one King, his deputy, in taking the plaintiff’s goods, and selling them upon an execution in favor of Thomas Sheldon, against the Chester Glass Company. The defendant pleaded that King was not guilty, upon which issue being joined, trial was had April term, 1820, at Springfield, before Putnam, J. The plaintiff supported the allegations contained in his declaration, and a verdict was returned in his favor. The defendant took several exceptions, which were argued here at the…
1Opinion of the Court
Curia.
We are all of opinion that, where the sheriff is sued for an injury done by his deputy to the person or property of another, trespass, and not case, is the proper action. The plaintiff has his election to sue the sheriff or his deputy; but the action must be the same against either. For the act is considered in law to be done, directly and personally, by the sheriff himself; which differs it from the case of a master called to answer for the wrongs of his servant in his employment (6).
Trespass vi et armis lies against the sheriff for taking the property of B, upon an execution against…
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