5 Vt. 181 | Vt. | 1833
It is insisted in this case, that pároli evidence is not admissible to prove the issuing of the execution, in the suit of Emerson and Orvis and the delivery of the same to the Sheriff, for the purpose of shewing, that the Sheriff’s lien on the property continued till the time of the conversion. Were this a new question, we should have no doubt of the legality of such evidence to establish the point, inasmuch as the issuing, of execution and the delivery to the Sheriff are mere matters in pais. The record, generally speaking, terminates with the judgement ; and although in some cases, the execution and return are treated as matters of record, as in case of a levy of lands, yet the facts to to be proved in this case, are not, from their nature, susceptible of proof by record ; the execution itself shews not when it was issued ; it has a date, but in this case, even that furnishes no evidence when it was issued; and as to the delivery to the Sheriff, it is a fact as foreign to the record as any fact imaginable. The minute directed to be made by the officer, of the date of the reception of the execution, is intended for the benefit and; security of others, and not for his; and should such minute appear on the execution, it would, by no means, be conclusive in his favor. If such minute could be falsified by parol, it might be supplied by parol, for wherever record evidence is required, it is conclusive in its nature.
It is to be observed, that the suit in the present instance is in favor of the officer, and to require a minute on the execution, in such case, would be nugatory, as it is in his power to make such minute at any time, and antedate it to suit his convenience.
This question has however been repeatedly decided.— See Lowry vs. Stevens, in this County, Jan. Term, 1832, and Fletcher vs. Pratts, Windham County, 1832. It is forther urged, that the plaintiff cannot maintain this action by virtue of his lien, for want of an actual possession
As to the execution in favor of Emerson & Orvis, it was-clearly admissible as affecting the measure of damages.-— It was not admitted to establish the right of action — that' being sufficiently established by the proceedings in the other cases. It is a settled rule, that, the right of action being established, evidence as to the measure of damages-is admissible, although if arise after the commencement of the action. This evidence was also proper-, as shewing a continuance of the plaintiff’s lien.
Another exception is taken to the admission of evidence to show a fraudulent purchase by the defendant from’ Barber, of the property in question. The case does not-show what use was made of this evidence ; but if it were pertinent to any purpose, it was clearly admissible.
The case states, that- evidence was given tending to show an actual conversion; and it would seem that the evidence objected to was introduced in connection with that. In this point of view, it Vras undoubtedly proper, as explaining the acts of the defendant, and determining their legal character and effect. The declarations of a party accompanying his acts are admissible to explain those acts. This evidence was not of itself sufficient to prove a conversion, nor was it so treated by the Court; but, in one event, it might be very important. Upon a question whether an actual conversion of a part should be deemed a legal conversion of the whole property, evidence of this character -might have an important bearing. The evidence was therefore admissible. Had any improper bearing been given to this evidence, the case should have shown it. As nothing of this kind does appear the judgement must be affirmed.
