#### Anson Collins, Appellant, v. John Waggoner, Appellee.

APPEAL FROM MADISON.

Trespass will lie if the process is abused, or if after it has done its office, the officer proceeds to act under color of it by direction of the plaintiffs, they become both liable as trespassers.

Opinion of the Court by

Chief Justice Wilson.*

The only question presented by this case for the decision of the court is, whether the proper form of action has been adopted.

The facts in the case are, that Waggoner sued Collins in replevin for a cow, upon which issue was taken, and a verdict and judgment for Waggoner. Collins also pleaded a judgment against Waggoner on which an execution issued, by virtue of which a constable took the cow and sold her, and he became the purchaser. To this plea Waggoner replied that the cause of action upon which the judgment was rendered, accrued before the first of May, 1821, that there was no indorsement on the execution to take the notes of the -state bank; that before and after the cow was taken by the execution, he offered to pay it in notes of the state bank, or replevy it for three years, and that Collins would not permit it to be done, but directed the constable to levy. To this replication there was a demurrer which was overruled ; the case was then tried upon the issue of non cepit, and a verdict and judgment for Waggoner. It is contended that trespass will not lie for any act done under a process regularly issued from a court having competent jurisdiction. This rule is true as regards acts in conformity with the authority conferred by the process, even though there should be malice in the manner of executing it. But if the process is abused, trespass will lie, or if, after having done its office, the officer proceeds to act under color of it by the direction of the plaintiffs, they both become liable as trespassers.

In this case before the justice, the statute permitted the defendant to discharge the execution in the notes of the state bank, or replevy it for three years, which he offered to do, but the plaintiff in the execution refused to permit it to be done. If he had stopped here he would not have been liable as a traspasser, but he became so by the subsequent levy of the execution by the constable, under his directions, because it had spent its force and was officially dead. The taking of the *187cow, therefore, was tortious and no more authorized by the execution than the taking property of a third person. The judgment of the court below is affirmed, (a) , (1)

Starr, for appellant.

Cowles, for appellee.

Judgment affirmed.

*

Justices Lockwood and Smith having been counsel in this cause, gave no opinion.

(a)

If a sheriff levy an execution after the return day, by the direction of the plaintiff and his attorney, they are all trespassers. Vail v. Lewis, 4 Johns. Rep., 450.

An execution, after the expiration of the time within which it is made returnable, is of no force, and an arrest under it is a trespass. Stoyel v. Lawrence & Adams. 3 Day’s Rep , 1.

(1)

See note to Moore v. Watts et al., ante, p. 42, where the decisions on this question are fully referred to.