Cornell v. Cook — 7 Cow. 310

Majority

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Cornell against Cook.

NEW YORK,

May, 1827.

Headnote

The indorsetíon by a constable is prima facie evidence of the levy, in an action of trover by him for the property levied on, against a creditor whose execution is levied on the same property.

It is regular under the statute of 1824, (sess. 47, ch. 238,) for a debtor to divide an entire demand of more than twenty-five dollars into smaller sums, confess several judgments for

Teoveb, for household furniture, and other articles; tried at the Montgomery circuit, in December, 1826, before Walworth, 0. Judge; when the following facts were . in evidence :

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those sums, each amounting to twenty-five dollars or less, without the specification or affidavit required by the 14th section of that act.

"Whether a justice’s execution can be renewed, so as to be valid against third persons, creditors upon execution, after it has once been levied upon property sufficient to satisfy it? Quere.

An action will not lie on a judgment after a levy by execution on property sufficient to satisfy it. Per Savage, Ch. X delivering the opinion of the court.

A justice’s execution levied, if suffered to expire without a sale, loses its lien. Per Savage, Ch. X, delivering the opinion of the court.

Where a justice’s executions had been levied, but a sale was delayed by arrangement between the parties, and the executions renewed; the constable admitting, that on the renewal, he renewed his indorsement of levy; and subsequent to the last indorsement of levy, the defendant confessed other judgments, upon which executions issued, and the property covered by the last indorsement of levy, was seized and sold; it having never been removed from the defendant’s possession upon the first levy; and there being no proof of a levy upon the renewed executions, except the constable’s indorsement; in trover by him against the creditor who sold; held, that the circumstances would warrant a jury in finding against the plaintiff.

The plaintiff was a constable, and held two justice’s executions against Sternburgh, of $50 37, issued on judgments rendered in favor of Ehle and Cook, on the 10th of February, 1824. One execution issued March 31st was renewed July 19th, and again December 23d, 1824. The other issued July 19th, and was renewed December 23d, in the same year. Both were issued on oath, and returnable in 90 days. With these executions, the plaintiff went several times to Sternburgh’s house, in the summer and autumn of 1824. In December, 1824, Sternburgh paid the plaintiff, (Cornell,) his fees on the executions; and by an arrangement with him, there was a suspension of collection ; and Sternburgh heard no more of the executions "-till the 10th or 12th of January, 1825. Sternburgh supposed the plaintiff levied ; but the goods were not removed, and there was no levy, to his knowledge, after the last renewal. The plaintiff gave in evidence the two executions, on which levies were indorsed by him, as having been made January 5th, 1825, with his name and addition as constable, signed.

The judge decided the indorsement of the constable was prima fade evidence of the levy; and refused to nonsuit the plaintiff for a defect in the proof of levy; and the defendant proved that the plaintiff stated to one of the witnesses, that he levied when he first received the executions, and when they were renewed, he altered the date of his first indorsements of levy.

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On the 31st of January, 1825, Sternburgh confessed eight judgments of $25 each, with costs; and one fpr about $Í4, before a justice, in favor of the defendant. These judgments were founded on two promissory notes due from Sternburgh to the defendant; one of 70, and another of 100 dollars; and no specifications of the consideration, or any affidavit of the demands, were filed with the justice. The justice himself divided and apportioned the amount of the notes and interest; and judgments were taken for the amount really due. Executions were immediately issued, the defendápt avowing that his object was to get preference of the executions in the plaintiff’s hands. The defendant caused the property levied on by the plaintiff, to be seized on his, the defendant’s executions; and it was sold on the 7th of February, 1825, after full notice, of the former levy, given to the defendant.

Verdict for the plaintiff, subject to the opinion of this court.

H. Loucks, for the plaintiff.

There is abundant evidence to warrant a jury in finding a levy. The law will presume this in favor of public officers. (4 Cowen, 461. 11 John. 513 .) The statute (sess. 47. ch. 238, s. 14, p. 286,) makes it the duty of the constable to indorse the time" oí levying. This indorsement is in itself evidence.

*The two executions, were, from the time of their renew als, as new executions for 90 days. ( 12 John. 320 .) What took place before, cannot impair their effect as such. It was not necessary to remove the property, (3 Cowen, 272. 13 John. 251 .)

But the nine judgments were a nullity: and the defendant, therefore, a mere wrong doer. The justice exceeded his jurisdiction by splitting up indivisible demands, exceeding $50. ( 16 John. 121 . 15 id. 229 .) Consent will not confer jurisdiction. (3 Caines, 129.) If this proceeding is allowed as valid, the intent of the legislature in re? quiring sworn specifications, (sess. 47, ch. 228, s, 13,) is entirely frustrated. The object was to guard against fraud; and the provision should be enforced. It cannot be done,

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if in the power of the justice and.parties to. evade it at . . , x J * • their pleasure.

J. W. Cady, contra.

The only evidence of the plaintiff ’s right, was his own act, the indorsement of his levy. ,But the executions in his " hands, were void. They were renewed without authority; and after they had been satisfied. A levy had been made upon the original executions. This extinguished the judgments, and no farther executions could issue. The act, (sess. 47, ch. 238, s. 14, April 12th, 1824,) authorizes a renewal, or a new execution, only where sufficient goods cannot be found on the first. After the levy, the plaintiffs could. not have maintained, an aqtipn on the judgments. It was the official duty-of the. plaintiff to sell within 90 days. Neglecting ■ to -do- so, he-was responsible. If he acted with the plaintiff’s. authority, he was not responsible; and cannot have tro ver for'the goods. The action rests upon the ground of his being accountable over. Bac. Abr. Trover, (C.)

The plaintiff never took the goods into ,his custody. They were all along in the undisturbed possession of Stern-burgh. The defendant, was a Iona fide creditor; and his judgments and executions were valid. The notes were not divisible by the holder; -but there is nothing in law or in reason to prevent the parties consenting to divide them, and putting them into small judgments. The ^policy of the statute extends only to judgments over $25; such being a lien on real estate.

The first question is, whether the indorsement of ■ a levy upon the executions, in the plaintiff’s hands, and' -by the plaintiff himself, is sufficient evidence of the fact, to enable him to maintain trover or trespass, against a third person, who intermeddless with the property levied on.

We have several times decided, and I think correctly, that such an indorsement is, prima fade,, sufficient. It is an official act required by the statute; and every presumption is in favor of a public officers faithful performance.of

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his duty. It seems to be sufficient also upon the ground ^ necessity; as an officer cannot be supposed to carry witnesses with him to prove every levy, or other official act required of him. The judge was correct, therefore, in refusing the nonsuit.

The next inquiry is, whether the defendant had any right to dispute the plaintiff’s claim to the property in question. It is not disputed that the defendant was a Iona fide creditor of Sternburgh. But it is alleged that the judgments are void, as being entered upon an entire demand which equalled the amount of all the judgments. In the case of Smith v. Jones, ( 15 John. 229 ,) it was decided that the plaintiff could not divide an entire demand, so as to bring separate suits. That was the case of two suits brought for three barrels of potashes, all sold at once. They were adversary suits. The court said, that an entire demand could not thus be divided into separate actions. But I can see no reason why the parties to a large demand may not, by mutual agreement, divide it into any number of smaller ones which may suit their convenience. It was surely in the power of these parties to have discharged this demand of $214, by taking 10 dollar notes or 25 dollar notes. Taking judgments for the same amount is equally lawful. It is said the provision requiring an affidavit or specification, may be in this manner evaded. The specification is not required on judgments of $25.

*It then becomes necessary to inquire whether the defendant was justified in selling the property of Sternburgh upon his executions. In determining this question, it will be necessary to advert to the testimony relative to the renewals of the executions under which the plaintiff .claims. One of those executions had been twice renewed, the other once; and each renewal was made after the expiration of the 90 days, within which the execution should have been executed and returned. The language of the act is: “If no goods or chattels can be found, or not sufficient to satisfy such execution, the party recovering the judgment may, from time to time, renew such execution, or have further execution against the goods and chattels of the party

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■against whom such judgment is recovered; or may an action of debt thereon.” (1 R. L. 393.) By this act, an execution may be renewed in such cases only where a new execution might be issued, or an action of debt would lie. By the declarations of the plaintiff, it appears that he levied on the same property on the first execution issued in each judgment, which he now claims to hold upon them; and that when the executions were renewed, he merely altered the date of the indorsement of levy on the back of the executions. The inference is, that no new levy was made upon each renewal; but merely an alteration made to correspond with the date of the renewal.

In Wickham v. Miller, ( 12 John. 320 ,) it was decided that the mode of renewing an execution by an indorsement was proper; and, prima facie, evidence of information given to the magistrate, that no goods or chattels could be found. And therefore a renewed execution was a protection to the officer. It is expressly admitted, that an execution cannot be renewed, unless there be a failure to find sufficient goods and chattels. It is not decided that an execution, renewed upon false information, shall be a protection to the officer; nor that a renewal is good when the fact of a sufficient levy appears upon the execution. It is said in that.case, that the renewal of the execution is a judicial act; and a protection to the officer. I confess, *1 had always supposed that the issuing of the execution, and the renewal of it, were mere ministerial acts; which the justice does, as matter of course, without first inquiring whether the judgment has been paid or the execution satisfied. Suppose a new execution had been issued, instead of the first renewal, it would certainly have been irregular. Suppose an action of debt had been brought, the former levy would have been a good defense, if pleaded. The defendant in the execution could alone have taken advantage of such a defense. But I think any judgment creditor has a right to inquire into the regularity of such proceedings as are shown in this case. Of executions running 90 days, one is twice renewed; another, once after they had expired; no evidence of a levy except the in-

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and that-accompanied with-the plaintiff's acknowledgment that-he altered the date of the -indorsements -when the executions were renewed. According to the indorsements, property enough was levied on to satisfy the first executions. The renewals were therefore irregular; and "even-if the'renewed executions wotild hold the property-as against the defendant in those executions, which it is not necessary -to decide, it is quite another question -whether they are not dormant-as against other judgment creditors. Had Cook levied after the expiration of the first executions, and before the renewal, there can be no doubt, I think, but that -he 'must have held the -property. By suffering the executions to expire without a sale, all claim to the property, by the' plaintiff, was gone. (Brown v. Cook, 9 John, 361 .) If so, the, plaintiff should at - least have' shown- an actual "levy-upon the last execution,-to enable him to -retain a preference.

-But there-is in this case, positive "proof of delay and'indulgdnee on the part of the plaintiff, which should postpone the- executions In his hands -to the -defendant’s executions. Sternburgh swears, that in the month of - Decemher, 1824, he paid the plaintiff his fees 'on the executions; and, by an arrangement with him, there was a-suspension of- the collection of the executions. Besides; it does not appear that the plaintiff ever advertised, though'*he-mtist ■have levied as- early-as May or June, 1824. Taking all the facts, it seems-to me there is sufficient to authorize a jury in finding the executions in the plaintiff’s hands dormant. If so, the defendant had - á right to take the property upon his execution as he did. -I am 'accordingly of opinion that-the defendant is entitled- to judgment.

- Judgment for-the defendant.