McDougald v. Dougherty

By the Court. Nnbet, J. delivering the opinion. [1.] The proof was, that an exection in favor of Edward T. Taylor vs. M. Torrance, administrator of J. C. Watson, deceased, was levied by direction of Mr. Dougherty, attorney for the plaintiff, upon lands in the actual possession of the plaintiff below, D. McDougald. ■ I see no room to 'doubt that Mr. Dougherty is liable as a trespasser. This levy was the misapplication of a legal procesa, It \vas a levy upon fcho lands of A, of a Jicra [615] against B. The entry upon the lands to make the levy, was illegal, and an illegal entry isa trespass. In trespass, all are principals. The possession of the plaintiff was sufficient to authorize him to sue. The Sheriff who made the levy, the attorney who ordered it, and the plaintiff’ in the execution, are all 'trespassers. It was incumbent on the defendant to justify, by showing that the land belonged to the defendant in execution, and was liable. As the case stood, the plaintiff' Was entitled to a verdict — for what amount, is not for us to say. 1 Chitty's Plead. 185-6. Sanderson vs. Baker et at. 3 Wils. 309. T. C. 2. Black. R. 832. Wale vs. Hill, 1 Bulst. 149. 3 Wils. 368. Co. Lit. 57. (a.) Inst. 183. 1 Salk. 409. Bro. Trespass, pl. 148, 232, 307. 6 T. R. 234. 8 East. 328. 34 Eng. C. Law. R. 376, 415. 41 Ibid, 196, 330. 42 Ibid, 237, 404. 35 Ibid, 433. 46 Ibid, 827. The Court gave no opinion on the facts. What he did was to pronounce what he considered the law arising on the facts prove n. Let the judgment be reversed.