delivered the Opinion of the Court.
This writ of error is prosecuted by Sunders, to reverse a judgment recovered against him, in an action on the case, which he brought in the circuit court against Vance.
The declaration of Sanders, as originally drawn and filed, was demurred to by Vance, and the demurrer being joined by Sanders, was sustained by the court.
The declaration so demurred to, contains but one count; but Sanders obtained leave of the court, and filed an additional count, by way of amendment to his declaration. This latter count is in trover for the conversion of fifty milch cows of the value of $1,000; fifty heifers and steers, of the value of $1,000; fifty horses of the value of $1,000; and divers piecesof household and kitchen furniture, consisting of beds, carpets, chairs, tables, table-cloths, China ware, pots and kettles, of the valué of $1,000.
Not guilty was pleaded Vance, but as the court had adjudged the first count of the declaration, to which there was a demurrer, bad, and as that demurrer was not withdrawn, the plea is understood to apply to the latter count only; so that it will not be necessary to take any further notice of the first count, or the decision of the court thereon.
A trial of the issue was had by a jury, and a verdiet of sixteen hundred and seventy-two dollars and eighty cents damages, was found against Vance; but on his motion, the verdict of the jury was set aside by the court, and a new trial awarded. Exceptions were taken to the opinion of the court, in awarding the new trial, and the whole of the evidence made part of the record. *
At a subsequent term of the court, the issue was again tried, and a verdict found by the jury, in favor ot Vance* A new trial was then moved tor by
It is to reverse this judgment, rendered on the last verdict, that Sanders has brought this writ of error.
Tt is contended by him, that the court erred at -both trials, in instructing the jury; and that the last verdict should have been set aside, but the first ought not to have been; and that judgment should have been rendered in his favor, on the verdict first found by the jury.
It is -proper that our attention should be first directed to the first trial, to ascertain whether, in setting aside the verdict then found for Sanders, any error was committed by the court. For, if in setting aside that verdict, the court erred, it follows, from the repeated-decisions of this court, that all the subsequent proceedings are erroneous, and of course the judgment which was rendered upon the last verdict, cannot be permitted to stand.
To form a correct opinion, as to the propriety of setting aside the first verdict, it is necessary to understand the material facts which the evidence given to the jury went to prove. - They are briefly and substantially these:
Whilst the owner and possessor of the articles of property mentioned in the declaration, with others, Lewis Sanders, under a promise previously made to his brother, (the plaintiff,) executed a deed of mortgage thereof to him, for the purpose of indemnifying his brother against debts for which he had become bound to others as his surety. At the time the mortgage bears date, it was not delivered by Lewis Sanders, nor was his brother present at its execution; but before the expiration of the time required by law, for recording such instruments, Lewis
By the instructions of the court, the jury were told, that if they should find from the evidence, that the defendant, in person, or by agent, caused the execution under which the sheriff acted, to be levied upon, and a sale made of the property, which had been previo usly mortgaged to the plaintiff, in good
Whether or not, the conclusions of law in every particular, were correctly drawn by the court, upob''the facts assumed, and on the truth of which the instructions to the jury were predicated, is not necessary now to be examined and decided. By failing to produce at the trial, the judgment on which the execution in her favor, against Lewis Sanders, issued, and under which the property was sold by the sheriff, or a copy thereof, the defendant was undoubtedly not in a condition to attack the mortgage from Lewis Sanders to the plaintiff, on the ground of its being fraudulent, as to the creditors, and purchasers of the mortgagor, and thereby defeat the recovery by the plaintiff in this action.
The law was so ruled by the court, in the case, Lake vs. Billers, &c. 1 Lord Ray. 733. That was an action of trespass brought against the sheriff, for goods taken. Upon not guilty pleaded, the sheriff gave in evidence, that he levied them in execution, by virtue of a fieri facias. The plaintiff made title to the goods by a prior execution, but fraudulent; and by bill of sale made of them, to him, by the officer, (viz. the sheriff, predecessor of the defendant.) It was ruled by the court, that the defendant, though sheriff, ought to give in evidence, a copy of the judgment, though it was admitted that it would
The defendant, not being therefore, in a condition to attack the mortgage, on the ground of fraud, it would seem that she can have ho good cause to complain of the jury, having disregarded the instructions of the court, as to the mortgage being fraudulent or otherwise, as to creditors or purchasers of the vendor, that being a point totally abstract and irrelevant to the matter presented for the determination of the jury. Without, therefore, pursuing and revising the opinion ofthe circuit court, on abstract and impertinent points, we shall proceed to inquire, ¿whether, in any material point, the court erred in its instructions, to the prejudice of the defendant.
The objection taken to the form of action, has no weight with ns. That trespass will lie against the sheriff, or against the sheriff and plaintiff, or against the plaintiff alone, provided, the plaintiff assists the sheriff, in favor of one whose property is taken and sold under an execution against another, is as firmly settled, by a train of adjudications, both in England and America, as perhaps any other principle of the . common law; and if trespass might have been maintained, no reason is perceived why trover will not lie.. To recover for the injury occasioned by. the original taking, trespass is, no doubt, the proper action; but the plaintiff generally has the right to waive the original trespass, and bring trover for the conversion of the property taken; and no reason is discerned, nor principle of law known, which takes the case of trespass committed by an officer, under color of process, out of the general principle.
But the instructions of the court go, not only to sustain the action, but according to our understanding of them, they import a decision, that as matter of law, the plaintiff in an action of trover has the right to recover, and the jury are bound to assess damages equivalent to the value of the.property con
With respect to the last verdict, we also think it should have been set aside. On that trial, the defendant also failed to produce the judgment, or a C0Py uPon which the execution issued in her favor, therefore, as we have seen, she could not raise. the question as to the mortgage being fraudulent, and if not fraudulent, there is no pretext for supporting the verdict which was found by the jury, in her favor.
The judgment must, consequently, be reversed, with cost; the cause remanded to the court below; the last verdict there set aside, and further proceedings had, not inconsistent with this opinion.