Benjamin v. Smith

| N.Y. Sup. Ct. | May 15, 1830

By the Court,

Marcy, J.

The bill of exceptions in this cause presents two questions: one on the rejection of the offer to prove the declarations of the plaintiffs in the first execution as to the instructions to the sheriff, and the other on the charge to the jury.

There are some exceptions to the general rule that neither party to a suit can be permitted to prove the declarations or admissions of third persons. Where a party refers to a third person for information on a particular subject, the answer of that person is generally evidence against such party. So, where a third person is an agent to make or negotiate a contract, what he says while executing the object of his agency is evidence against his principal. The declarations of an under sheriff, in matters delating to the execution of his office, is evidence against the sheriff, since he is the responsible person. (1 Ld. Raym. 190.) Had it been shewn in this case that Rathbone and Hunt had indemnified the sheriff, then, being parties in interest, their declarations would have been admissible. (4 Campb. 38. Stark. Ev. pt. 4, 42.) But I do not discover any exception tti the general rule that would sanction the evidence offered by the plaintiff. I think the judge decided correctly on this point.

The cases on the subject of dormant executions have been so recently reviewed by this court in Russell v. Gibbs, (5 Cowen, 390,) and the rule of law applicable to this case so well settled by the chief justice, that there is no occasion to look to any other authority. The rule as there settled is, that generally speaking the mere delay of the officer, without countenance or direction from the plaintiff in the execution, will not render the execution dormant. This case is supposed to differ from one to which that rule is applicable. There was a delay here by the express direction of Rathbone and Hunt. In March, they directed a delay till the 1st of July. If they had not directed or countenanced the officer in a delay beyond that period, I am disposed to think that the delay should not be adjudged prejudicial to their rights under the circumstances of this case ; but, as I view the facts proved, they would have warranted the jury in finding that the delay subsequent to July was countenanced and approved by them. When they gave the directions to delay till July, they told the deputy if Nichols did not pay by that time they should have to proceed on the fi.fa. In August, Hunt told the deputy that Nichols had not paid any thing, and they (Rathbone and Hunt) should have to proceed on the execution. This mode of expression is somewhat peculiar, and seems to me to imply that they had something to do by way of setting the officer in motion. Again, Hunt’s remark when the deputy asked him if he wished the debt collected before the 1st of September, that he would see him again, or that he would let him know, confirms the conclusion which, I think, the jury might have drawn from the expression of Hunt, “ that they should have to proceed on the execution.” The officer himself drew such conclusion, for he says “ he waited, expecting other orders” from ^em . jje wajte¿ nearly or quite ten months from the time when he made the levy, and until another execution had been ^ev^ec^ on the property and the defendant dispossessed. I will not say what inference a jury ought to draw from that portion of the testimony to which I have alluded, for that might not be strictly proper ; but we are called on, in deciding this motion, to consider what inference they might have drawn from it. They might have believed that the delay subsequent to July was with the countenance and approval of Rathbone and Hunt, and if it was so, the execution in reference to that subsequently issued was in law fraudulent. In the case of Lovick v. Crowder, (8 Barn. & Cres. 165,) the sheriff was held liable, though the plaintiff there had much less reason to complain of the conduct of the sheriff than the plaintiff here had to complain of the proceedings of the defendant. I readily admit that there was something in the situation of Nichols to command sympathy ; but if the application of legal principles were to be influenced in any considerable degree by the indulgence of sympathetic feelings, the uncertainty of the law would soon be subjected to a much more serious reproach than the sneer of those who are ignorant of the true character of the science of jurisprudence.

I think the judge erred in his charge. He should have instructed the jury to find the first execution dormant, or fraudulent as to the execution of the plaintiff, if the delay on it down to the time of sale was occasioned by the interference of the plaintiffs therein. I am therefore in favor of a new trial.