Barker, late Sheriff, against Binninger

Barker, late Sheriff, against Binninger. A manual interference with chattels is not requisite to constitute a valid levy thereon. It is sufficient that tlie property is present, and subject to the control of the officer having' the execution, and that he then openly states that he levies upon and asserts authority over it by virtue thereof. The supreme court has power to authorize a sheriff to withdraw from the files an execution, and to cancel a return of nulla bona made thereon. After the return has been thus canceled it does not conclude or estop the sheriff as against parties who did not act upon the faith of it. Accordingly, where the deputy of the sheriff levied upon the debtor’s property, which, in the life of the execution, was wrongfully converted by a third person, and the deputy afterwards returned the execution nulla bona ; and tile sheriff, by the authority and permission of the court, withdrew the execution from the clerk’s office and canceled the return, and brought an action for the conversion of the property; Held, that he was not estopped from proving the levy, and that the property belonged to the debtor; and further, Held, that the return did not divest the title acquired by the levy, or discharge the right of action for the conversion. In such an action it is not a valid objection that notice of the application for leave to cancel the return was not given to the party sued for the conversion. The statements of a deputy, not made in the performance of an official act, are not evidence in chief against the sheriff. Action by the plaintiff, the late sheriff of Oneida county, to recover for the conversion, by the defendant, of a horse levied u pon by virtue of an execution against one Bride. The action was tried in March, 1854, at the Oneida county circuit, held by Mr. Justice Pratt. It was admitted that the plaintiff was sheriff of Oneida county in 1849; and it was proved that on the 29th of August of that year an execution was issued, directed to the sheriff of Oneida county, upon a judgment recovered in the supreme court in favor of Knapp and others against Bride, for 8356.58, and delivered to Bagg, who was one of the plaintiff’s deputies. Bagg, the deputy, was sworn as a witness on the part of the plaintiff, and, among other things, testified that on the 25th of September, 1849, he went to Hampton, in Oneida county, and found Bride, the defendant in the execution, who resided in another part of the county, there; that he went with Bride from the tavern, where he was stopping, to a stable near by, where the horse in question was; that when they had gone into the stable, the horse being there within his view, he informed Bride that he had the execution against him, and that he then levied on the horse by virtue of the execution, and that he must not move him; and that on his return to Ms office the next day, he made a formal memorandum of the levy. He further testified, that about two weeks after the levy he went to the residence of Bride with a view to advertise the horse for sale, but that he could not b.e found, and that on inquiry the horse could not be found in the county. There was evidence tending to prove that after the levy, and during the life of the execution, the defendant took or caused the horse to be taken from Oneida county and removed him from the state. The plaintiff produced and read in evidence the execution against Bride. On the cross-examination of Bagg, the deputy, he testified, that in February, 1850, he wrote on the back of the execution “ nulla bona, Lester Barker, sheriff, by Gr. W. Bagg, deputy,” and returned it to the clerk’s office, in Oneida county, where the judgment roll against Bride was filed. On his reexamination, he further testified that the plaintiff knew nothing about the execution, or of the return of it, until long after the witness had returned it to the clerk’s office, and when the plaintiff was sued by the plaintiffs in the execution for not making its amount. The plaintiff proved that in August, 1853, the supreme court, on his application, founded on an affidavit showing the foregoing facts, and notice to the attorney of the plaintiffs in the execution, made an order authorizing the sheriff to withdraw the execution from the clerk’s office, and strike out and cancel the return añade by the deputy, and to hold the same as though the return had never been made; and that in pursuance of this order the plaintiff had taken the execution from the files and canceled and erased the said return. It was admitted that no notice of this motion was given to the defendant herein. It appeared that in July, 1853, the plaintiffs in the execution' recovered judgment against the sheriff for its amount, in an action against him for not making its amount, and that this judgment had not been paid. The defendant gave evidence tending to show that at the time of the levy the horse belonged to him; and, with this view, he offered in evidence a letter written by Bagg, the deputy, to the plaintiffs in the execution, on the 31st of October, 1849, after he ascertained that the horse had been removed from the county, and in it he stated that the horse had been sold on a chattel mortgage. This was objected to as incompetent evidence against the plaintiff, and excluded; and the counsel for the defendant excepted. The counsel for the defendant, on a motion for a nonsuit when the plaintiff rested, and again at the close of the evidence in a request to the court to charge the jury, insisted: 1st. That there was no sufficient evidence of a levy on the horse; that mere words would not constitute a levy. 2d. That the return made by the deputy estopped the plaintiff from denying its correctness, and that for this reason he could not recover; that by this return the plaintiff disclaimed that he was rightfully possessed of, or had title to, any property of the debtor. 3d. That by this return the levy was released and the sheriff divested of any title acquired thereby. 4th. That the subsequent canceling of the return did not affect the rights of parties acquired prior to that time. 5th. That the defendant could not be affected by such cancellation, as he had no notice of the application for leave to do so. 6th. That the rights of the plaintiff to the property were divested by the return of the execution, unless such return was procured by fraud, and that the subsequent withdrawal of the execution from the files, and cancellation of the return, did not reinvest in the plaintiff" any right to the property, or enable him to sustain an action for its prior wrongful conversion. The court denied the motion for a nonsuit, and the defendant’s counsel excepted. The C(vurt charged the jury, among other things, as follows: That to constitute a levy the officer need not manually seize the property; that if the property was in his presence, so that he could control it, and he then having the execution declared openly that he then levied upon it by virtue of the execution, this constituted a levy as against the debtor or a third person. That in this case the evidence was, that the deputy was at the stable, and that the door being open he saw the horse, and stated that he levied upon him by virtue of the execution; and that if the jury believed this evidence there was a sufficient levy made. That the return of the execution had no such -conclusive effect upon the plaintiff as vras insisted upon by the counsel for the defendant; that it was evidence against the plaintiff that no levy was made; but that if a levy was in fact made, and the horse was then owned by the execution debtor, the plaintiff acquired a special property in the horse, and could maintain an action against any one wrongfully interfering with or taking away the property. That the subsequent return of the execution having been canceled by the order of the court, the title of the plaintiff to the property was not thereby divested, so that he could not maintain this action ; that the court had power to amend, cancel or annul the return of the sheriff; and that notice of the application to the court for the order as to this return was not required to have been given to the defendant herein, as he was no party to the execution or the judgment on which it issued ; and that the plaintiff was entitled to recover the value of the property to the amount of the execution, if they found that the horse belonged to Bride as against creditors, and was wrongfully converted by the defendant after the levy and before the deputy made the return of the execution. The judge refused to charge as requested, except as contained in the foregoing; and the counsel for the defendant excepted to the refusal to charge as requested, and to the charge as above given, and every part of it. There was a verdict in favor of the plaintiff for the amount of the execution. The judgment was affirmed at a general term in the fifth district. The defendant appealed to this court. T. Darlington, for the appellant. I. The judge erred in refusing to dismiss the complaint, and in refusing to charge as requested. 1. The deputy’s being in sight of the horse, and simply saying that he levied upon him and forbidding his removal, without taking charge of him, or putting him in charge of any other person, without making any provision for his sustenance, and without any acquiescence in the words of the officer, or any abandonment whatever of the property by the possessor, or damage suffered by him, was not such an actual possession of the property, or interference with it or exercise of dominion over it by the officer, as is essential to constitute an act of trespass, in case his acts were unlawful, and could not therefore constitute a levy. If by any dicta or decision such a case as the one here presented can be adjudged to be a levy, such decisions should not be sustained by this court as the law of the land. (Haggerty v. Wilber, 16 John., 287; Beckman v. Lansing, 3 Wend., 446; Westervelt v. Pinckney, 14 id., 123; Ray v. Harcourt, 19 id., 495; Camp v. Chamberlain, 5 Denio, 198.) 2. The plaintifly by his return “ nulla bo?ia,” was estopped from denying the correctness of his return, and from asserting that he had levied upon the property of Bride. He could not lawfully gainsay his own solemn and official act. (Thomas v. Pearse, 5 Price, 547; Townsend v. Olin, 5 Wend., 209; Shelden v. Payne, 3 Seld., 453; Boomer v. Laine, 10 Wend., 525; Watson on Shff., 204.) 3. If the plaintiff ever had any title to any property under this execution, he surrendered and divested himself of it when he returned the execution into the clerk’s office. The execution was his only warrant and foundation of title, and when he returned it he had no more title to Bride’s property than any stranger. (Devoe v. Elliot, 2 Caine, 243; Vail v. Lewis and another, 4 John., 450; Slingerland v. Swart, 13 id., 255; Jackson v. Striker, 1 John. Ca., 284.) 4. The return of the execution by the plaintiff could not be canceled in such a manner as to revest in him the title to Bride’s property, which the execution, while living, might have given him while he held it. The sheriff’s title to the property died when he surrendered the execution, and nothing could revive it, neither the court nor the legislature. (Emerson v. Upton, 9 Pick., 167; Freeman v. Paul., 3 Greenl., 260; Putnam v. Hall, 3 Pick., 445; Means v. Osgood, 7 Greenl., 146; Devoe v. Elliot, 2 Caine, 243.) F. Kernan, for the respondent. I. The evidence was sufficient to prove, and the jury, under proper instructions found, that the horse was levied upon, by virtue of the execution, on the 25th of September, 1849. (16 John., 287, 8; 11 Wend., 548; 14 id., 123; 19 id., 495, 497; 2 Hill, 666, 668; 5 Denio, 198, 202, 3.) II. The plaintiff, as sheriff by virtue of the execution and levy, acquired such a property in the horse as entitled him to sustain an action against any one wrongfully converting him to his use, and recover the amount of the execution. (6 John., 195; 7 id., 32; 11 id., 529; 12 id., 403; 1 Cowen, 322; 7 id., 294-297; 3 Hill, 215.) III. By the levy and the conversion of the horse, the plaintiff, in October, 1849, and during the life of the execution, acquired the cause of action herein, against the defendant. (Authorities on second point, supra.) This right of action could only be destroyed by a release or the receipt of something in satisfaction. (Bowman v. Teall et al., 23 Wend., 306—9, and cases cited; Allaire v. Whitney, 3 Hill 484, 488.) IV. The return “ hulla lona," made by Bagg, the deputy, on the execution in February, 1850, is no bar to the plaintiff’s action against the defendant. 1. In October, prior to the return, the right of action accrued and vested in the plaintiff. This return did not and could not release or discharge the defendant from the action which had accrued against him. (Authorities on third point.) The defendant did no act on the faith of this return or after it was made. 2. A sheriff is only concluded by his return, where it is set up by a party who acted upon or claims something under it. As an admission by the sheriff, it is but primer, facie evidence, and may be explained or contradicted. (Crocker on Sheriffs, § 46; Baker v. McDuffie, 23 Wend., 289, 291; 2 Cowen & Hill’s Notes, 1085, 1091, 2, note 741.) V. But the court had power to and did order the return canceled on a direct proceeding for, that purpose. As to the defendant, the plaintiff holds'the execution, the same as though it had never been returned. 1. It will not be disputed that the court has power to alter, amend or correct a return to make it conformable to truth, or to relieve a sheriff from a mistake or wrongful act of his deputy, where the rights of third persons are not affected thereby. (Crocker on Sheriffs, § 43; 23 Wend., 289, 291, and cases cited; 2 Cowen & Hill’s Notes, 1095, 6, note 741, and cases cited.) 2. The defendant was a wrong-doer; he was no party to the execution, the suit in which it issued, or the proceedings thereon; he did not act relying on the return; he had no rights which were affected by amending the return, and was not entitled to notice of the motion to amend it. (Authorities last above cited.) [MAJORITY — Johnson, J. Hubbard, J.] Johnson, J. The levy made by the Deputy Sheriff, Bagg, upon the horse Young Prospect, was sufficient. The proof showed that he went into the stable where the horse was. with the defendant in the execution, and there, the horse being in his view, told the defendant in the execution that he had an execution against his property in favor of the Knapps, and that he then levied on the horse to apply on the execution, and that the defendant must not move the horse. To this no objection appears to have been made by the defendant in the execution. The judge ruled that this made out a sufficient levy, and that a manual seizure of the property was not necessary. In Green v. Burke (23 Wend., 490), and Connah v. Hale (23 id., 462), the question, what is a sufficient levy, was fully discussed by Mr. Justice Cowen, in delivering the opinions of the supreme court m those cases, upon an examination in détail of the authorities, and the conclusion was arrived at that a manual interference with the property was not necessary, but that an assertion of right by an officer, in virtue of process in his possession in respect to goods within his power, is an actual taking-possession of them, and is sufficient to subject him to an action of trespass; if his process does not protect him. The case of Bailey v. Adams (14 Wend., 201) was examined, in that connection, and shown to be inconsistent with the current of authority in this state, so far as it favors the view that manual interference with the property is essential to a valid levy. In the subsequent case of Camp v. Chamberlain (5 Denio, 198), Chief Justice Beardsley maintains, in substance, the same doctrine as is contained in the cases in 23 Wend. It was shown by the proof that, early in October, 1849, the horse in question came into the hands of the defendant, and was disposed of by him, and the jury, under instructions not complained of, have found in accordance with the proof, and have found against any rightful superior title in Binninger, so that ,the general question in the cause depends upon the effect of the return of the execution nulla bona, in 1850, by the deputy sheriff, and the subsequent, cancellation of that return by the order of the supreme court. The supreme court possesses general authority over its own records, and may in its discretion permit amendments of them to be made. The practice is very common and the power well ascertained. (Adams v. Smith, 5 Cowen, 280; 2 Cowen Hill’s Notes to Phil. on Ev., 1096.) The defendant is not in a position where he can controvert the authority of the court or the effect of the amendment. His responsibility for the horse arose out of his own wrongful acts before the return was made. The return gave him no right. He did nothing upon the faith of it. If it had not been amended, it could only have operated in his favor, as an obstacle to the plaintiff’s assertion of liis rights, and not because it conferred any right upon the defendant. The court, therefore, committed no error in holding that if the jury found that the property belonged to Bride as against creditors, and was wrongfully taken and converted by the defendant, after the levy and before the return of the execution, the return was well amended. This also disposes of the question upon the judge’s refusal to allow the defendant to amend his answer, as the object of the application wras to enable the defendant to raise the question of the effect of the original return and its amendment upon the plaintiff’s right to maintainy the action, and we 'have seen that the defendant’s position as to the effect of the return could not be sustained. The only other question which requires to be noticed is the refusal of the judge to allow the defendant to read as evidence the letter of Bagg, the deputy sheriff, written to the plaintiffs in the execution, in October, 1849. It was written after the property had come into the defendant’s hands, and was in no possible view competent. The judgment should be affirmed. Hubbard, J. No doubt can be entertained of the fact of the levy in question. The deputy of the sheriff went into the stable where the horse stood, and then, in the presence of the defendant in the execution, produced the execution and declared that he levied and forbid all removal or interference with the horse. It was not necessary that the sheriff should manually touch the horse or remove it from the stable; the animal was within his dominion, and except for the protection of his process he would have been a trespasser within the well settled principles of law. (5 Denio, 198; 16 John., 287; 2 Hill, 666.) The motion for nonsuit, on the ground of the want of proof of a levy, was therefore properly overruled. There was abundant proof of the fact of conversion by the defendant. It is inferable from the evidence that he removed the horse out of the state with the deliberate design of placing it beyond the reach of the sheriff by virtue of the levy. The letter written by the deputy sheriff to the plaintiffs in the execution was not competent evidence for any purpose against the plaintiff. That letter was written after the defendant’s conversion, and at a time when the deputy did not assume to act officially. It related to matters of information concerning, the title to the property levied on, and was in no respect competent against his principal, the sheriff. After the removal of the horse by the defendant from the county of Oneida, where the levy was made, the deputy sheriff returned the execution nulla bona, and filed the same in the clerk’s office. Subsequently, upon instance of the sheriff, the court allowed the execution to be taken from the files and the return to be stricken out. On the trial it was insisted that the sheriff was concluded by the return, and that it could not be contradicted by showing that a levy was actually made. The objection against the revival of the process goes to the power of the court. That the court possessed the power to authorize the correction of the return, to reinvigorate the process by erasing the return of nulla, bona, cannot admit of doubt. It has the amplest jurisdiction over its records. No notice of that motion was necessary to be given to the defendant. He had no legal interest in the question. He -was a trespasser committing the wrong prior to the return of the execution. He acquired no rights founded on the faith of the return. It is not the case of a bona fide purchaser after the return was made, acting upon the assumption of its truthfulness. There is, therefore, no question of estoppel arising in the case. The plaintiff’s right of recovery in this action did not depend upon the fact of his having been compelled to respond to the plaintiffs in the execution for the value of the horse, on the ground of a levy. His right is predicated on the special property acquired by virtue of the levy, as against the defendant who is a wrong-doer. (Barker v. Miller, 6 John., 195; Dezell v. Odell, 3 Hill, 215.) The judgment must be affirmed. Judgment accordingly.