
    No. 99.
    Duncan McDougald, plaintiff in error, vs. William Dougherty, defendant in error.
    
       The levy of an execution against A, upon property in the possession of B, is a trespass; and the plaintiff in execuiion, the attorney for the plaintiff in execution who orders the levy, and the officer who makes it, are all liable as trespassers, unless they justify by showing that the property belonged to the defendant in execution, and was liable to the execution.
    
      Trespass, in Muscogee Superior Court. Tried before Judge Iverson. November Term, 1852.
    William Dougherty, as an attorney, directed the Sheriff of Muscogee County to levy a fi. fu. in favor of Edward T. Taylor, administrator, &c. vs. M. Torrance, administrator, &c. of Jas. C. Walson, deceased, on several lots of land, known as the “Watson place,” and in the possession of Duncan McDougald; which levy was made by the Sheriff. McDougald interposed a claim thereto, which is still pending; and commenced a suit against Wm. Dougherty, for a trespass, in causing the levy to be made.
    On the trial, the above facts were given in evidence, and the further fact that Watson was in possession of these lands a short time before his death.
    When Mr. Dougherty arose to address the Jury, the Court remarked that it was unnecessary, as the Court would charge the Jury that there was no evidence to authorize a verdict against the deiendant; and that if he had asked for anon-suit, the Court would have granted it.
    The Court charged the Jury as intimated above ; and to this charge, and the previous remarks of the Court, exceptions were filed, and error has been assigned thereon.
    Devon, for plaintiff in error.
    Wr. Dougherty, for defendant in error.
   By the Court.

Nnbet, J.

delivering the opinion.

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 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.  