
    Sherry vs. Schuyler.
    On a ji. fa. against S. and H., endorsed with directions to levy on joint property but not on the property of S., the sheriff has no authority to seize the separate property of the latter; and where he did so, held that the property was not to be deemed in the custody of the law, so as to prevent its being taken and sold under a landlord’s warrant
    In an action against a sheriff for an unauthorized seizure of property under a fi. fa., he has a right to show, in mitigation of damages, that the property was subsequently taken from his custody and lawfully sold on a distress warrant issued by a third person.
    Trespass for seizing goods, on an execution, tried before Cushman, C. Judge, at the Rensselaer circuit in March, 1841. The defendant was sheriff of Rensselaer county, and had an execution put into his hands against the plaintiff Sherry, and one Hoyt, endorsed with directions to levy on their joint property, and not on the property of Sherry. Instead of following the directions, the sheriff seized the separate property of Sherry, and for this the present action was brought.
    On the trial the defendant offered to show in mitigation of damages, that after the seizure complained of, the landlord of Sherry issued a distress warrant against him on which the goods in question were taken and sold. This was objected to on the ground, that the property being in the custody of the law under the defendant’s levy, the landlord’s only remedy was by affidavit and notice to the sheriff pursuant to 1 JR. S. 737, § 12; and therefore the distress warrant issued illegally. The circuit judge rejected the evidence, to which the defendant’s counsel excepted ; and a verdict having been rendered against the defendant for $274,95, his counsel now moved for a new trial on a bill of exceptions.
    
      D. Gardner, for the defendant.
    
      JM. T. Reynolds, for the plaintiff.
   Per Curiam.

The sheriff disregarded the directions on the execution and levied upon the separate property of Sherry. In this he acted without authority; and there is therefore no pretence for saying that the goods were in the custody of the law, so as to preclude the landlord’s right to distrain. The evidence offered and rejected was clearly admissible in mitigation of damages, as it would have gone to show that, independent of any agency on the part of the defendant, the property in question had been applied to the payment of the plaintiff’s debt due to a third person. (Higgins v. Whitney, 24 Wend. 379.)

New trial granted. 
      
      
         See S. P. Irish v. Cloyes et al. (8 Verm. Rep. 30.) Such evidence however will not establish a complete defence. {Id.) Nor is it admissible even in mitigation of damages, where the process on which the property has been applied was in favor of the wrongdoer. (Otis v. Jones, 21 Wend. 394 Hanmer v. Wilsey, 17 id. 91. Higgins v. Whitney, 24 id. 379.) In Kentucky, however, where a constable having an execution against A., residing in another county, passed over into that county and there seized A.’s horse, which he took back to his own county and sold, crediting the proceeds on the execution,; held, in trespass by A. for the illegal seizure, that the constable had a right to show the sale and application of the proceeds to the payment of A.’s debt, in mitigation of damages. (Board v. Head, 3 Dana's Rep. 489, 494.)
     