38 N.Y. 253 | NY | 1868
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *255
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *256 The suggestion of the bankrupt's discharge can have no effect here. Such discharge cannot be considered as a bar to an action, in any stage, without being pleaded; and, if obtained too late to be pleaded, either originally, or by amendment, the remedy, it seems, is by motion for perpetual stay of execution. (Palmer v.Hutchins, 1 Cow. 42; Baker v. Taylor, id. 165.)
The questions in this case arise upon the denial of the defendant's motion for a nonsuit, and upon the rulings of the court upon his several offers of evidence. A nonsuit was asked for, on the ground, that the receipt given by the defendant was void, under the provisions of the Revised Statutes relative to the powers and duties of certain judicial officers (2 R.S. 286, § 59) as being colore officii, and not authorized by law. But it was long since settled, that it was only illegal acts, done by color of office, which were declared void by this statute, and, that the right of the sheriff to take such a receipt, for property levied upon, was well established at common law. (Acker v. Burrall, 21 Wend. 605; Same case in Court of Errors, 23 id. 606.) In that case, a covenant by the receiptor to return the property on request, or pay the debt, was upheld and enforced.
There can be no doubt, that the motion for a nonsuit was properly denied. The case of the appellant rests, therefore, upon his offers of evidence which were refused by the court. And, first, on his offer to show, that the property receipted for was not the property of the execution debtor, but that of the witness Cure, in whose possession it was found; and, *257
that the sheriff was informed of the fact when the levy was made. In refusing to admit evidence of these facts, the court was certainly sustained by the amplest authority. In Acker v.Burrall (supra), COWEN, J. says, "The defendant is estopped by his covenant to deny the plaintiff's property; at least till he has been evicted by title paramount in some third person." InDesell v. Odell (3 Hill, 215), the same rule is maintained, though the court, by COWEN, J., say, "It may be conceded, that, had the defendant's claim been interposed at the time of the levy, and had he signed the receipt, in terms, without prejudice to his rights, the question would have been open." But, in thePeople v. Recder (
Counsel for the appellant seeks to distinguish the present case from either of the foregoing, and to relieve it from the effect of those decisions by the circumstance that here was the offer to prove the additional fact, that, at the time of the giving of the receipt, the execution debtor had no property whatever, wherewith to satisfy any portion of the execution, and that the sheriff knew that fact when he took the receipt. They urge that the ground upon which an estoppel was had in the foregoing and other similar decisions was, that, by the covenant or undertaking of the receiptor, the sheriff was induced to rely upon the levy already made, and prevented from seeking other property of the debtor, out of which to make this money he was required to collect. Whereas, were the fact such as indicated by the additional offer in this case, viz., that the debtor had no property, whatever, upon which the executions could have been levied, no injury could have been done to the sheriff or the judgment creditors by inducing them to omit to look for other property. But the offer to prove that the debtor had no property seems to me to be *258 unavailing, and the evidence to have been properly rejected. First, the offer related only to the time of the levy and the giving of the receipt. That occurred on the third day after the issue of the executions, and there were yet fifty-seven days of the life-time of the writs, during which the debtor might have acquired property upon which a levy might have been made, had not the sheriff relied upon the undertaking of the defendant; and, second, whatever the effect of the evidence offered might have been, it was properly excluded, because there was no allegation in the answer to support it. The question whether the execution debtor had any property whatever, out of which these executions might have been satisfied, if a material issue, was one of which the plaintiff must have notice before he could be called upon to meet it. This evidence, in any view of the case, was, therefore, properly excluded, and the defendant cannot avail himself of the offer to take the case out of the rule laid down in the decisions above cited.
The only remaining offer of evidence which requires to be examined, and that upon which the defendant chiefly relies, is the offer to prove that the property receipted for was worth only the sum of $250. And here, as before, I am constrained to conclude that the evidence offered was properly excluded. The contract was to return the property or pay the executions. It was founded upon a sufficient consideration, viz., the surrender of the property levied upon to Cure. It was without ambiguity. There is no allegation or suggestion of fraud, mistake or duress. The defendant must be supposed to have made it voluntarily, with his eyes open, with full knowledge of its meaning and effect. I know of no principle upon which he can be relieved from the liability to respond according to the plain terms of his contract. Whatever the proof might have been as to the actual value of the property, the parties must be presumed to have estimated it at the time of the contract, at the full amount of the executions. The sheriff was, therefore, justified in making no further effort to find property of the judgment debtor and he became at once responsible to the judgment creditors *259 for the full amount of the executions. In Browning v.Hanford, in the Court of Errors (5 Denio, 586), the sheriff was sued for not collecting an execution. He proved that the property levied upon was casually destroyed by fire after the levy, and that, before the fire, he had taken a receipt for the property, in which the receiptor had agreed to return it on demand, or pay the execution and costs; and that the receiptor was of sufficient ability to respond to his undertaking. The Court of Errors held that the facts alleged were no excuse to the sheriff, but that he was liable for the full amount of the execution unless the property were destroyed by act of God or of the public enemy. The decision was just upon the ground that the liability of the sheriff should be as broad as that of the receiptor to him, and the liability of the receiptor to the sheriff was considered to be absolute and dischargeable only by act of God or the public enemy.
It is unnecessary to inquire what would have been the measure of the defendant's liability had he failed to return only a portion of the property receipted for. That state of facts might have presented a question of some difficulty which does not arise here. In this case the receiptor returned no portion of the property, but leaves it in the possession of the person at whose request the receipt was given and by whom he declares himself indemnified, and awaits the action of the sheriff. I cannot doubt that he was liable according to the terms of his contract. Here was no case of a penalty nor of liquidated damages, it was clearly a contract to indemnify the sheriff for surrendering a levy upon property which was estimated to be of value sufficient to pay the executions levied. By taking such receipt the sheriff has been precluded from levying upon other property of the judgment debtor, and has become responsible to the judgment creditors for the amount of the executions levied. The defendant cannot now be heard to allege that the property was of less value than the sum stipulated to be paid in case of its non-delivery.
The judgment must be affirmed.
Judgment affirmed. *260
