
    THE PRINCETON BANK ads. MARGARET S. GIBSON.
    1. An action on the case will not lie by a landlord against the plaintiff in execution or against any other person, for advising, commanding or procuring a sheriff to sell and remove the goods of a tenant, whose rent is unpaid ; such plaintiff or other person knowing that the sheriff had received notice that the rent was due and intending to prevent the landlord from collecting it.
    2. A plaintiff in execution is not liable in an action on the case for a tort committed by the sheriff in executing the writ.
    The first' count of the declaration in this case alleged, that John S. Hart had been the tenant of the plaintiff, and on a day therein named, was indebted to her in the sum of one thousand dollars, for rent then due and payable; that on the same day, the defendants, by virtue and under pretence of a writ of execution in their favor against Hart, “ then and there caused, required, procured and commanded the sheriff of the county of Mercer, to take the goods and chattels of the said John S. Hart, then being in the tenements so rented by him of the plaintiff, to an amount beyond the sum due her for rent •” that after the taking and before the removal of the goods, the plaintiff gave notice to the sheriff, of the rent in arrear, and requested that the plaintiff might be paid the same before the goods should be sold or removed; and that the defendants, well knowing the premises, but not regarding their duty nor the statute in such case made and provided, but contriving and wrongfully and deceitfully intending to defraud the plaintiff of the said, arrears of rent and of her remedy for the recovery thereof, under color and pretence of their writ of execution, wrongfully, injuriously and deceitfully caused, required, procured and commanded the goods and chattels taken to be sold, removed and carried away from and off the rented premises, contrary to the form of the statute &c. and without paying or satisfying the plaintiff for the rent due &c. and that the same remained due &c.
    There were other counts, but all substantially the same as the one before set out.
    To this declaration the defendants put in a general demurrer.
    
      II. 8. Field and P. P. Vroora in support of the demurrer.
    
      8. II. Hamilton and II. W. Green contra.
   The opinion of the Court, was delivered by

Horstblower, C. J.

The demurrer admits all the material facts substantially set forth in the declaration, and the question is, whether upon the plaintiff’s own statement, she is entitled to this action ? What then are those facts ? They are briefly these. That Hart owed the plaintiff one year’s rent; that she gave notice to the sheriff of that fact, and requested him not to sell or remove the goods, until the rent was paid; that the defendants, well knowing the same, wrongfully, and with bad faith, caused the goods to be sold and removed, with intent to defraud the plaintiff of her rent.

If these facts will maintain an action of trespass on the case against these defendants, it must be, either because they are the plaintiff’s in execution; or because sueh an action will lie, against any body ; even a stranger to the execution, who wrongfully and with an unlawful intent, causes, procures and commands a sheriff to sell the goods, knowing that rent is due and unpaid. But it was very properly admitted by the plaintiff’s counsel on the argument, that this action would not lie against the defendants, simply because they were plaintiffs in the execution under which the goods had been taken; that this action is not given by the statute concerning landlords and tenants, Elm. Dig. 302, but that it \s founded on the statute; or rather that it is a common law action brought to protect or enforce rights given to landlords by the statute. This admission brings us to the simple question, whether, if a stranger to an execution, with intent to inj ure a landlord, causes, requires, procures, commands, or in any way induces the officer, having such execution in his hands, to act contrary to law, to abuse his trust, and remove and sell the goods of a tenant, before the rent has been paid, such stranger thereby becomes liable to an action on the case by the landlord ?

If the sheriff by removing the goods, after notice of rent due, committed a trespass, then indeed, the plaintiff in execution, or a stranger to it, by aiding and abetting the sheriff, would also be a trespasser. If one man is guilty of a trespass, another cannot be sued in another action on the case, for aiding and abetting or counselling and advising him to commit that trespass. But the sheriff is not a trespasser, he neither entered upon her close, nor took her goods. The remedy against him, is only by a special action on the case. Palgrave v. Windham, 1 Str. 212; Henchett v. Kimpson, 2 Wil. 140; Green v. Austin, 3 Camp. 260; Calvert v. Joliffe 2 Barn. and Adol. 418, in 22 Eng. Com. Law, 114; Brown v. Fay, 6 Wend. 392.

Besides, if the sheriff, after notice, once remove the goods, or any part of them, he cannot relieve himself by paying the amount of sales or the value of the goods, although that may be much less than the rent due; and this is because the sheriff has committed a tort, and the landlord is entitled to recover such damages as a jury may award to him. Barn. and, Adolp. 418, above cited; Colyer v. Speer, 2 Brod. and Bing. 67, in 6 Eng. Com. Law 21, and see 7 Price 566.

The sheriff then, was the wrong doer. The command or directions of the plaintiffs in execution to go on and remove the goods, however evil and unlawful the intention, did the plaintiff no harm ; they did not physically compel the sheriff to act as he did ; and he had no business to be persuaded or seduced to act contrary to law. Now I take it to be a clear rule of law, that for injuries not amounting to a trespass, and for which the only remedy is by a special action on the case, the action must be brought against the party actually committing the wrong. In such cases there can be no accessories; no aiders and abetto:»s against whom separate actions can be brought, as in trespass. Here the sheriff clearly committed the tort and no one else. It cannot be denied, that an action on the case will lie against him; and what is to prevent such a suit against him, after a recovery in this action ?

This is not like the cases of master and servant, or principal and agent, where the maxim quifaeit &c. applies. The sheriff is not in such sense the servant, agent or bailiff of the plaintiff. A plaintiff in execution is not liable for torts committed by the sheriff, to third persons, while executing the process upon the goods of the defendant in execution. It is true, if the sheriff seizes property not belonging to the defendant, the plaintiff in the writ is a co-trespasser, and may be sued alone or jointly with the sheriff; not however, because the sheriff was his servant or agent; but because the plaintiff was a party to the trespass. But in this case, no trespass was done to the plaintiff; she had no title to or possession of the goods taken. The injury done to her, was not by seizing or taking away the goods, but by removing them before the rent was paid.

Again, if this action can be maintained, what is to be the measure of damages ? It is not an action for removing the goods; but for causing or procuring the sheriff to remove them. In an action against the sheriff the measure of damages, would be the rent due, or at least, the value of the goods, if worth less than the rent. By this I do not mean, that the jury would be restricted to either, in dollars and cents. But one or the other of those sums, would constitute the general basis upon which damages should be rendered. If therefore in this action, the jury are to be guided by the same measure of damages, I do not see what is to prevent a double recovery; once against the sheriff and once against these defendants. Nay, more; since it is admitted that these defendants are not liable, simply because they were plaintiffs in the execution; nor yet, because, being such plaintiffs, they procured the sheriff by command or otherwise to remove and sell the goods, with an evil intent; but simply because the defendants, with such intent, did procure the sheriff to do so, I do not see why they might not have the like action against any body, who, with like evil intent, procured some one else to procure the sheriff, to proceed in the manner he has. For this action is not, if I understand the plaintiff’s counsel, for removing the goods, but for procuring the sheriff to do so, with intent to injure the plaintiff. Nor do I see where upon the principles contended for, this liability is to end.

I am therefore of opinion, that admitting every thing stated in the declaration, this action will not lie. It is a case oí' the first impression. Our books furnish us with no precedent of such an action. Nor is there any use of it. The remedy is complete, either by an action against the sheriff, or by an application to the court for a rule on the sheriff to pay the landlord the rent due, out of the moneys which have been raised. 2 Wils. 142, and other cases above cited.

The defendants must have judgment on the demurrer with costs.

Judgment accordingly.  