dissented from the opinion of the court, for the following reasons, viz. It appears that the plaintiff was a lawful officer, and had in his hands a lawful writ of execution in favor of David Buel against sajd Delavergne, which he was bound by law to execute; that he levied said execution on eight oxen, belonging to said Delavergne and posted them as the law directs; and that he delivei’ed said oxen to the defendants, to keep and redeliver to him- on the 15th of June A. D. 1790 and took their receipt and promise in writing for the same; the giving of the receipt is admitted by the defendants, but they say that this is an alias execution, and that a former execution had issued for the same debt, which had been paid to the attorney of said Buel, and by him was discharged, and this execution was taken out by said Buffi to vex and oppress said Delavergne — and that no oxen were ever in fact taken by said execution, or delivered to them, etc. this last averment in the plea, being contrary to the receipt which is admitted, is inadmissible and must be laid out of the case.
The only question then is, "Whether the former' execution being paid and discharged, and this alias execution being taken out by the creditor, only for the purpose of oppression, without the knowledge or privity of the plaintiff, is a bar to the plaintiff’s action. The ground of the plaintiff’s right to recover is his responsibility for the property taken, and as it was lawfully taken by him, it is immaterial to which he is responsible, whether creditor or debtor, either is equally available for the purpose of this action.
*381"Where an officer takes property on an execution, and the debt is otherwise paid to the creditor, the officer is accountable for the property to the debtor; and in that case he has equal right to recover it from his bailee, as if the creditor had not been paid. To render the bar complete, it must appear that neither the debtor or creditor hath any demand on the plaintiff.
This judgment was afterwards reversed in the Supreme Court of Errors, in May A. D. 1792, for the following reasons, viz.