
    BISHOP against HARVEY.
    OH OBKTIOEABI.
    A combination of constables to pay proceeds of sale of goods to execution creditors, though claimed for rent, is illegal.
    The action below was an action on the case.
    The plaintiff below, who is the defendant in this court, filed with the justice the following state of demand:
    
      “ The plaintiff in this action demands of the defendant, [*] the sum of $85 for this: That on or about the 19th of December, in the year 1803, the plaintiff and defendant, both holding executions against the goods and chattels and body of Anthony Hartly, as constable of the county of Salem, did go together to the house of said Anthony Hartly, to procure property to make to satisfy the executions held by them against the said Anthony Hartly; when they arrived at the house, a dispute arose between them, the said constables, and the representatives of David Reed, who was the landlord of the said Anthony Hartly, as to the several claims on the goods and chattels of the said Anthony Hartly. The plaintiff and defendant claimed a right to the goods, to discharge the several executions ; and the landlord to discharge his rent due for the premises; whereupon it waB agreed between the plaintiff and defendant in this action that they would at all hazards take the goods opt of the possession of the landlord, and sell them; each of them take a proportion of the money arising from the sale to discharge their several executions ; and if the landlord should commence his action against them, they would be at equal and joint expense in defending themselves against the landlord; and the plaintiff further says that landlord did commence his action against the plaintiff and defendant in this action,’ before Lewis Yorke, Esq., justice of the peace for the county of Salem, and did recover judgment against Wood Bishop, late constable, and William Harvey, late constable, at the suit of David Reed, the aforesaid landlord, seven dollars and thirty-five cents, together with costs of suit, making, in the whole, $10.58, besides interest, on which an execution issued in favor of said David Reed, against the plaintiff and defendant in this action. And the plaintiff further saith that Wood Bishop, late constable, did receive all the money arising from the sale of the goods of the said Anthony Hartly, and applied it to [f] his own use; and has ever since wholly refused to pay any part thereof to the plaintiff; and the plaintiff saith that he did pay the other half part of the demand of the executors of the said David Reed, against the plaintiff and defendant in this action; and the said defendant hath refused, and doth refuse, to pay the two several sums of money, or any part thereof, by which the plaintiff is greatly damaged. WILLIAM HARVEY, late constable.”
    To this state of demand the plaintiff below filed the following plea
    Wood Bishop, late constable, comes into court, and pleadeth and saith, that he has not trespassed on the said William Harvey, late constable, or done him any damage; and also says that the°said William Harvey never did sell the property of Anthony Hartly, or advertise it; and the said Wood Bishop, late constable, pleads that the Baid William Harvey, late constable, hath sued him six or seven [479] times about the country, and never recovered judgment, to the great damage of the said Bishop, late constable, one hundred dollars; for which he craves a judgment against said William Harvey, late constable.
    WOOD BISHOP, late constable.
    Upon these pleadings the parties went to trial, and Harvey obtained a verdict and judgment for . $12.50 debt, and $5.37 costs; and now Bishop prosecutes this certiorari to reverse the judgment of the justice.
   By the Court.

The facts set forth in the plaintiff’s state of demand, are found true by the verdict; but these facts disclose a fradulent combination between two public officers, under color of legal authority, to cheat a third person, the landlord, out of his money; from such a fraudulent contract no action can arise; that even if the contract was lawful, the breach assigned is too loose to sustain a judgment.

Judgment reversed.

Cited in Church v. Muir, 4 Vr. 318.  