Rogers v. Brewster , 5 Johns. 125 ( 1809 )

Per Curiam.

The statute concerning distresses, &c. does not apply to the case of a levy upon personal property, by an officer, by warrant, in the nature of an execution. But the constable appears to have executed the warrant in an unreasonable and oppressive manner, and with the avowed and malicious design to vex and oppress the plaintiff below. When the oppression and malice are thus charged as the gist of the action, and are clearly made out, an action on the case will lie. The oppression of officers, in the execution of process, is indictable; (T. Raym. 216. Cro. Jac. 426.) and a great abuse of the powers of a sheriff, on execution, has been held sufSclent to make him a'trespasser, (Noy, 59. 9 East, 303, 4.) or to bring him into contempt. (2. Show. 87.) If he be charged with a malicious and oppressive proceeding, the proper remedy for this abuse of power, is a special action oñ the case, in which the malice and the oppression must both be made manifest. In Sutton v. John stone, (1 Term Rep. 503.) Baron Eyre, in giving the opinion of the court of exchequer, laid down this general principle, that where it could be shown that one man had causelessly and maliciously exercised over another, to his damage, powers incident to his situation of superior, a special action on the case lay. The judgment in that case was afterwards reversed; but the reversal did not affect the solidity of this principle, in cases not arising under the exercise of military or naval authority. The seizing and selling the horse, in the case before us, was without any just cause, so long as other property was shown, which would have raised the money with equal facility. It was, therefore, a causeless and malicious proceeding. Where a ministerial officer does any thing against the duty of his office, and damage thereby accrues to the party, an action lies. The judgment must be affirmed.

Judgment affirmed.