
    Horton vs. Hendershot.
    Where the plaintiff and defendant, being constables, had each levied on the same - property, pursuant to attachments in favor of different creditors, regular on their face, but reaiy void as against the respective parties who procured them because of having issued on defective affidavits: held-, that though the plaintiff levied first, and had taken possession, he could not maintain trespass de bonis against the defendant for a subsequent levy and taking under his attachment.-
    It can make no difference,’in such case, that the defendant stands indemnified by the persons under whose process he acted.
    Had the party whose property was taitón sued either officer, the process would have been a defence.
    And had the creditor, in the attachment under which the plaintiff acted, sued him, because of the loss of the property, the want of jurisdiction would have been a defence.
    The rule justifying an officer acting under process apparently regular, but really void as to the party, for want of jurisdiction, is one of protection merely. The officer-may defend under such process, but he cannot build up a title upon it, so as to maintain actions against third persons.
    A motion for a new trial, on a case, will be denied, it seems, irrespective of the ground on which the cause was disposed of at the circuit, if the court see that another exists which must "ultimately prove fatal to the party moving: otherwise! L where the question arises on bill of exceptions.
    
    
      Trespass de bonis asportatis, tried at the Tompkins circuit in February, 1839, before Monell, C. Judge. Both parties are constables, and both sought to make title to the possession of the property, under several attachments issued by justices of the peace, in favor of several individuals, against one Edwin Dart. The plaintiff made the first levy, and took the property into his possession; and _for the subsequent taking by the defendant, this action was brought. All of the attachments were regular upon their face, so as to afford a sufficient protection to the officers who served them; but in relation to the parties in whose favor they issued, all the attachments on both sides were void, because the affidavits on which they issued did not show enough to give the justices who issued them, jurisdiction to proceed in that manner. A verdict having passed for the defendant, the plaintiff now moves for a new trial on a case.
    
      G. D. Beers, for plaintiff.
    
      B. Johnson, for defendant.
   By the Court, Bronson, J.

Both of these officers have acted under attachments, which, though void as to the parties in whose favor they issued, were regular upon their face, and without any apparent defect of jurisdiction on the part of the justices who issued them. The plaintiff levied first, and the defendant took the property out of his possession. Can the plaintiff maintain trespass for that taking? The case of Earl v. Camp, (16 Wendell, 562,) answers the question against him. The rule which justifies the officer, when acting under such process as I have mentioned, is one of protection—not of assault. It is a shield, but not a sword. The officer, when sued, may defend under such process, but he cannot build up a title upon it, which will enable him to maintain actions against third persons.

The defendant, in this case, -stands simply in the -attitude of defence. He claims nothing but that protection which process, apparently regular, affords to the officer who serves it. The plaintiff goes beyond that, and seeks to build up a title upon the process in his hands. He has not been sued, nor is he in any peril of suffering damage. If Dart sues him, the process will be a sufficient defence. If the plaintiffs in the process sue, because .the property has been lost, the officer may answer, that their process was void. (Earl v. Camp, supra.) In short, the plaintiff is not acting on the defensive, but is suing for the benefit of persons who could not maintain actions in their own names.

The fact that the defendant was indemnified by the persons under whose process he acted, cannot alter the case. Taking an indemnity, does not deprive the officer of the protection which his process affords.

The case was put upon other grounds at the circuit; but as the one I have mentioned leads to the same result; there can be no use in granting a new trial. This is a case—not a bill of exceptions.

New trial denied. 
      
      
         The same distinction was adverted to, in a general way, by Shaw, C. J. in Sturbridge v. Winslow, (21 Pick. 83, 87.)
     
      
      
         See the -cases cited -in Cowen & Hill's Notes to 1 Phill. Ev. pp. 990, 1005, et seq. and 1078: Also, Roberts v. Tennell, (4 Litt. R. 286, 288;) Sturbridge v. Winslow, (21 Pick. R. 83;) Isaacs v. Champlin, (1 Bail. R. 411;) and Countess of Rutland’s case, (6 Coke’s R. 53,54.)
     
      
       In addition to the cases referred to by Cowen, J. in Earl v. Camp, (16 Wendell, 567, 8,) see Aiken v. Moore, (1 Hill’s (So. Car.) R. 432:) also Countess of Rutland’s case, (6 Coke's R. 53, 54.) The officer, however, could not be allowed to answer that the process was irregular merely. (Harvey v. Huggins, 2 Bail. R. 252. Walden v. Davison, 15 Wendell, 575. The People v. Dunning, 1 id. 16.)
     