1 Denio 501 | Court for the Trial of Impeachments and Correction of Errors | 1845
The logs in question were sold by the sheriff of St. Lawrence on an execution in favor of the defendants in this suit against Beardsley & Lyon. One of
Had it appeared that Lyon was authorized by the defendants to purchase the logs for them at the sheriff’s sale, his purchase as their agent would have been evidence of a conversion by them. But this was not proved,.and- the charge placed the defendants’ liability on other and distinct grounds. The jury were instructed that the sale of the logs on an execution in favor of these defendants was alone sufficient evidence of a conversion by them, and that for two reasons: first, that as plaintiffs in the execution, they were responsible for what was done under it ; and secondly, it was to be presumed they had directed the sale of these logs.
This charge, in my opinion, cannot be upheld. The plaintiff in an execution certainly is not responsible for whatever the officer may do under it. The reverse is the rule; for supposing the execution to be legal, which in this case was not questioned, the party in whose favor it issued is only responsible so far as he directed or assented to the doing of the act complained of. Thus, where the goods of A. are taken by the sheriff on an exetion against B., no action will lie against the plaintiff in the execution unless he interfered with the levy, or assented to wha*.
In this part of the charge I think the learned judge erred, although in all other respects his views seem to me correct. There was certainly.room for doubt and controversy as to the event which was to work a transfer of the plaintiff’s property in the logs. His original title was placed beyond controversy, so far as respects these parties; and looking to the various parts and portions of the written contract between the plaintiff and Shepard, upon which this question arises, I am satisfied the plaintiff’s title was to remain unimpaired until the two thousand dollars and interest were fully paid. That payment had not been made, and the plaintiif’s title remained in full force. But a new trial must be had for the misdirection on. the point of conversion.
New trial ordered.