5 Wend. 207 | N.Y. Sup. Ct. | 1830
By the Court,
The special directions of the plaintiff, alluded to in the returns, must be considered as referring to the negotiation as to taking notes in satisfaction of the executions, and not to the ordinary instructions to the officer endorsed on a ca. sa. The arrangement to receive the notes was broken off, and though they were received, it is contended by the defendant they were not received in pursuance of the arrangement, or in satisfaction of the executions,1 but for his indemnity for the escape.
The evidence offered by the defendant, the rejection of which he now complains of, went to impeach his returns made under his oath of office, which returns he cannot be permitted to gainsay. By them he acknowledged that he had received the amount of the executions. It was not for him, when sought to be charged on those returns, to turn round and say, they are not true; what I received was not on the executions, but to indemnify myself against a threatened prosecution for an escape. Though, however, the defendant is concluded by the returns, the plaintiff is not; he may shew that what is contained in the returns, as to the satisfaction being in a particular mode by his direction, is not correct. The plaintiff did not direct the notes to be taken by the defendant. The taking of them did not therefore, per se, discharge the executions; but if the plaintiff has sub
The defendant offered to prove, that after the refusal of the plaintiff to receive the notes, and previous to his demand of them, Wilson had demanded them, and they had been re-delivered to him. How would this evidence, if it had been received, leave the parties 1 If the defendant is not permitted to shew, and in my opinion he is not, that the notes were received in a manner and for objects different from those stated in his return, it will not appear that Wilson had any right, to demand and receive the notes, and the defendant could not affect the rights of the plaintiff by giving them up. If the defendant had improperly disposed of the notes before the plaintiff offered to receive them, the effect of that offer is the same as if he still retained them. It was, in my opinion, ratifying the act of the defendant in receiving them ; and if so, this case is brought within the authority of the case of Armstrong v. Garrow.
The returns shew that the defendant received the amount of the executions. If it was in money, he is liable in this action ; if it was in notes, as the proof in this case shews, then the authority of Floyd v. Day, 3 Mass. Rep. 403, establishes that assumpsit, and not trover, is the proper form of action. The case would be different, had it appeared that the plaintiff had agreed that the notes might be taken, and had directed what notes should be received. In that case the coroner would have acted, in taking the notes, not in his official character, but as the agent of the defendant. It was not proved, otherwise than by the return, (which was contradicted,) that the defendant received the notes by the plaintiff’s direction, nor was that fact offered to be proved.
Motion for a new trial denied.