Browning v. Skillman

24 N.J.L. 351 | N.J. | 1854

Ogden, J.

George Skillman prosecuted George T. Browning and Joseph Justice in the Circuit Court of Mercer county, in an action of trespass, for taking away his personal chattels. The cause was brought to trial before Judge Potts upon two issues, one, not guilty, the other, whether the property belonged to George or to his brother, John Skillman, against whom Justice, as sheriff of the county, held an execution in favor of. Browning, by virtue of which he had levied upon the property in dispute, and had sold it as John’s property.

The jury rendered a general verdict ‘in favor of George Skillman, and assessed the damages at $299, upon which judgment was rendered.

During the progress of the trial, three bills of exceptions were prayed and allowed, on which errors have been assigned. They will be considered in the order presented in the assignment.

The first complaint is, that the judge, upon the trial below, permitted the defendant in error to prove his title to the goods and chattels in dispute by hearsay testimony. John Skillman had been the owner of the property, and George acquired whatever title he had from him.

Charles Wright, a witness on the part of the defendant in error, having testified to acts of ownership over the property by George, and to other matters respecting his title to it, was asked, upon reexamination, “When he heard that George bought the property of his brother John ?” This question was objected to, the objection overruled, and a bill prayed. The point of the question, and of the answer to it, were misconceived by the counsel of the plaintiffs in error. It was not an effort by the plaintiff below to show title by reputation, but was designed and tended only to fix a date to the matters and facts to which the witness had previously testified. There was no error in that ruling of the judge.

The second complaint is, that the plaintiff below, having offered proof of two alleged trespasses, at different times, upon a declaration containing one count, without a continuando, and rested his cause, the judge refused to put him to an election of one of the acts of trespass, as the foundation of his action.

The property in question consisted of horses and hacks, which were used by George Skillman on the stage route between Princeton and Trenton. The sheriff made his levy at the stable of Mr. Miller, where the horses were kept in Trenton, and left the property where he found it. A few days after-wards, one Isaiah W. Lanning, a constable of that county, took possession of the property, fastened the hacks with locks and chains, and directed the ostler to take care of the horses for him. Shortly after this, the sheriff took the property from the stable, moved it to an auction stand, and sold it. The proceedings of the sheriff, as far as the plaintiff be.low was concerned, were one continuous act; he commenced it by levying upon the property, and consummated it by a removal and sale, against the plaintiffs’ consent. His acts of control over the chattels were not divisible independent acts, but they constituted (if the jury found them to be unlawful) one trespass. The judge did not err in declining to require the plaintiff below to rely entirely either upon the act of the levy or upon the act of removing and selling the property.

The last error is assigned on the ground that Lanning, the constable, had such a possession of the articles inventoried on his levy as debarred the plaintiff below from maintaining trespass for them against a third person; and the plaintiffs in error complain that the judge, at the trial, refused to overrule, as illegal and incompetent, the testimony in the cause relative to those goods and chattels.

It appeared in evidence that one William A. Brearley had obtained a judgment against George Skillman, in the court for the trial of small causes, for #50 debt, besides costs, on the 14th of November, 1849, upon which an execution was issued, and placed in the hands of Lanning, the constable; that, by virtue thereof, the constable, on the 14th of November, made a levy upon and an inventory of a part of the property in dispute, by receiving a list from George Skillman without seeing the articles; that, with the consent of Brearley, he left the property in the possession and under the control of Skill-man till he should be otherwise directed, and he did not see it at all until after the sheriff had made his levy in March following, when he took actual possession of it, and without any authority from Skillman to do so, as deduced from the proofs. The constable, if his levy was lawful, had a special property in the goods inventoried by him, and, unless his right to the possession was suspended by his stay, he could have maintained trespass against a wrong doer; but such special property in him did not divest the actual owner of the rights which were incident to his general property. When the sheriff made his levy, the articles were in the actual possession of George, who was using them as his own.

Trespass de bonis asportatis may be maintained- against a mere wrong doer by the actual owner of the goods, and also by one having a special property in them, as a carrier, bailee, or sheriff, coupled with the actual possession by the latter. A recovery by one will oust the other. 2 Greenl. § 614, &c.; 2 Ib. 861; Bacon’s Abr. letter c, chap. 2, § 34-5; 2 Roll. Abr. § 569, p. 5.

I do not see that the judge committed an error in refusing to overrule the testimony, as requested to do by the counsel for the plaintiff in error.

In my opinion the judgment below should be affirmed with costs.

Potts, J., concurred.