Gorham v. Hood

By the Court.

Benning, J.

delivering the opinion.

[1.] The constable's entry was amendable. Hopkins vs. Burch, 3 Kelly 222. If it was amendable at all, we do not sec why it was not amendable as well after the plaintiff had closed his case as before. We think that there is no validity in the first ground of the motion for a new trial.

Was the charge right? That depends on, whether tresjoass was the remedy.

If the constable, in levying on the negroes, acted without authority, trespass was the remedy j if he acted merely in excess of his authority, the remedy was case. It is agreed, I believe, that this is the somewhat nice distinction. Conceding, that such a distinction exists, the question is, whether the constable acted without authority ? And, we think, that he did. At the time when he seized the negroes, he had already seized two mules, some cattle, a rockaway, and a wagon; and these articles were of sufficient value, to satisfy they?, fas. The Act of 1811, [Pr. Dig. 506,) declares, that, “No constable shall be authorized to levy on any negro, or negroes, or real estate, unless there is no other personal estate to be found, sufficient to satisfy the debt.”

[2.] The constable, then, was not authorized to levy on these negroes.

That being so, trespass was the remedy.

This ground in the motion, we think, then, was valid, and therefore, we think, that there ought to be a new trial.

As to the remaining ground, it is one that need not be considered.

Judgment reversed.