Wilson v. Gale

4 Wend. 623 | N.Y. Sup. Ct. | 1830

By the Court,

Savage, Ch. J.

The notice given to produce the execution, if necessary, was sufficient; a notice to produce a paper on the trial generally is good whenever the trial comes on. (6 Johns. R. 19,) But I think notice was unnecessary. Where the possession of a paper by the defendant is one of the grievances charged in the plaintiff’s declaration, it is unnecessary to give any other notice than the action itself implies; (Anthon’s N. P. 66, 4 Taunt. 868;) as in trover for a written instrument, the action itself is notice. (14 East, 274.) Here the action is not trover for the execution, but it is predicated on the defendant’s wrongful detention of the paper—his neglect to return it.

The evidence does not shew that the execution when first issued went into the hands of the defendant; but it appears that it was in his hands when it had run out, and that he himself produced it to obtain a renewal. This can properly be done only where the officer cannot find sufficient property to levy on. It was certainly prima facie evidence against him. The fact that it was in his possession was indisputable; and the presumption is that he would not have received it unless he had had sufficient time to levy and collect the money according to law. If the fact was otherwise, he should have shewn it in his defence.

It could not be expected that the justice would mention the execution in his return; he could not, as it was not in evidence before him, nor was it offered in evidence and rejected by him.

It is now objected that the action was prematurely brought; this assumes that the execution was not in the hands of the defendant until it was renewed. If the fact were so, as before observed, it should have been shewn in the court below, where possibly it could have been met by testimony shewing a waiver of such defence. But I consider the testimony sufficient prima, facie to shew that the defendant had the execution during its life before the renewal.

The common pleas gave their opinion to the jury that Gale and not Stevens was the owner of the judgment; and if the judgment included a demand due to Stevens, that did not give him the control of it. The court charged correctly. It is evident that the plaintiff, as sheriff, was responsible for the amount of Munson’s bid, and as Stevens had not paid over the money, there is no pretence for his saying that he owned the judgment; and it ,is also true that if he included in the judgment a demand due himself, that did not give him the right to control it. If the judgment had been paid to Gale, Stevens would have had a claim against him for the amount thus received which belonged to him.

There were some other points raised below which are not insisted on here ; I shall therefore not discuss them.

It is said, also, that there is a technical clerical error in the record; but it is one which, if it exists, may be amended, and judgment should not be reversed on that ground. I am therefore of opinion that judgment should be affirmed.

Judgment affirmed.