Denton v. Livingston

9 Johns. 96 | N.Y. Sup. Ct. | 1812

Kent, Ch. J. delivered the opinion of the court.

It is not a question, upon the present motion, whether the last count stated in the case was properly joined with the other counts. The first special count stated, is upon an implied assumpsit to pay the amount of moneys collected and received upon the writ of -venditioni exponas, and the point is, how far the evidence supports the count. '

There is no doubt but that a sheriff is responsible in assumpsit, upon the facts stated in that count. (W. Jones, 430. Hob. 206.) It might be a question whether, after the sale, the sheriff was not concluded by the value of the goods, as stated in his return to the ji. fa. for he returned that he had taken goods and chattels to the value of the damages in the execution. The general rule is, that an officer cannot be admitted to contradict his own return. In Clerk v. Withers, (2 Ld. Raym. 1072. 6 Mod. 290.) Holt, Ch. J. said, that the sheriff was bound by the value returned, and that he was bound to see that the goods sold for that value; and he gives this reason for his opinion, that when the sheriff levies on goods to the value of the debt, the defendant is discharged, whatever may become of the goods, "and he may plead such a levy in bar to an action of debt or sci.fa. on the judgment. This point, however, does not appear to have been judicially settled; and in the ancient case of Sly v. Finch, (Cro. Jac. 514.) the judges seem to have entertained a different opinion; for Houghton, J. said, that the sheriff was not estopped by the return value, and that he might sell the goods for more or less, and that it would not be reasonable to hold him to the estimated value. Dodderidge, J. and Montague, Ch. J. rather acquiesced in this principle, and only, held, if the property should in the mean time perish, after the levy and before a sale, the sheriff should be held to his value, as it would be impossible then to reduce the value to certainty. In the present case the counsel for the plaintiffs do not appear to have contended, at the trial, for the value of the goods as returned to the ft-fa. but to have equitably referred the case to the fact of the amount of the sales. If the sheriff conducts himself throughout the business with diligence and fidelity, this is certainly the more just rule, and the judgment ought not to be considered as any further satisfied, as against the original defendant, than the amount of the proceeds of such sale; for it may often happen that the property seized and returned as of the value of the debt, may be found not to belong to the defendant, or may be found to be of much less value, by the fall pf the market between the levy and the sale, or by means of some concealed defect or infirmity. We shall, therefore, waive the further consideration of this point, and ■ proceed as the plaintiffs did at the trial, to consider the actual sum for which the sheriff ought to account upon the sale, as made and proved.

1. He is answerable for the amount of the sale of the sloop, and his excuse for not returning the money is insufficient. Instead of retaining the sloop in his possession between the levy and the sale, he delivered her to Ashley, the purchaser; and as he afterwards sold her to him, and has lost the possession, he is answerable for the money she sold for. There is no other remedy for the plaintiffs. They cannot call upon the original defendant for the amount of this sloop, for he w'ould plead this seizure by the sheriffin bar; and if the sheriff, by such means as the delivery and subsequent sale of the chattel, without the money, could avoid answering for the amount, there would be no certainty and safety to the creditor, by the process of execution.

8. But the bank and library shares were levied on by mistake, for these were mere choses in action, and not the subject of a levy and sale by fi. fa. any more than bonds and notes; and such things cannot be taken in execution. (Francis v. Nash, 7 Geo. II. K. B. cited in Com. Dig. tit. Execution, c. 4.)

As, therefore, the charge of the judge was incorrect in ruling that the defendant was not answerable for the amount of the sale of the sloop, there must be a new trial, with costs to abide the event.

Rule granted.