Hicok v. Coates

2 Wend. 419 | N.Y. Sup. Ct. | 1829

• By the Court, Savage, Ch. J.

The plaintiff insists that the defendant’s third plea is bad, being an answer only to a part of the declaration ; and that even if the replication is defective, still, the defendant having committed the first fault in pleading, the plaintiff is entitled to judgment. The plea is certainly bad for the cause mentioned. The declaration

claims a large number of sides of sole and upper leather and skins. The plea justifies the taking of only twelve sides of sole leather. Mr. Chitty says, (1 Chitty’s Pl. 509,) that such a plea is not demurrable, and that the plaintiff should take judgment as by nil elicit for so much as is not justified ; but this court, in Sterling v. Sherwood, (20 Johns. R. 204,) held a contrary doctrine, and said that the plaintiff should demur. The plaintiff is therefore entitled to judgment upon the demurrer to the replication to the third plea.

As the fourth plea is conceded to be good, the replication to it must stand upon its own merits. The facts stated in the plea are, that the defendant, as sheriff, had levied on the property in question, and that the plaintiff, knowing that fact, had improperly obtained possession of it; and therefore the defendant peaceably re-took the property, in order to execute the writ by virtue of which he had levied. The replication does not deny the levy, but says, that after the levy the plaintiff in the execution ordered the defendant (the officer) to suspend further proceedings till he, the plaintiff in the execution, gave further directions ; that during this suspension, Woodruff, the defendant in the execution, with whom the property was left, sold it to the plaintiff in this suit for a valuable consideration. Assuming these facts to be true, the plaintiff had a good title to the property. The plaintiff in the execution, in consequence of the directions given by him to the defendant, (the officer,) lost his lien upon the property ; the execution became dormant; and any other creditor would have had a right to take it, or a purchaser for a valuable consideration would acquire title to it. The replication is therefore good in substance.

As to the form of the replication, it is objected that no time or place is mentioned when the orders were given to stay proceedings, or when the plaintiff purchased the property; the answer to which is, that neither of those facts was necessary to be averred. Where time and place are not material, the time and place in the declaration cannot be departed from in the plea or replication, and therefore need not to be repeated. (2 H. Bl. 261. 1 Chitty’s Pl. 624. 1 Saund. 8, n. 2.) Nor is it necessary that the delay should have been made with a view to defraud any one. Where the plaintiff in an execution directs an indefin^e staJ °f proceedings, such direction is a supersedeas to the execution so far as third persons are concerned. Nor was it necessary in this case to set forth in the replication the consideration paid by the purchaser; that is required only in cases where the rights of an assignee prosecuting in the name of the assignor are to be protected. So are the cases cited. (17 Johns. R. 284. 1 Mass. R. 117. 1 Cowen, 620. 6 id. 151.) Here the plaintiff purchases as if no execution had issued. The consideration is a subject for the inquiry of the jury, to ascertain the bonafides of the purchase ; but it is not necessary to be stated in pleading.

The plaintiff is entitled to judgment on the demurrer, with leave to the defendant to amend on payment of costs.