Peck v. Gurney — 2 Hill & Den. 605

Majority

p. 605

Peck vs. Gurney.

Headnote

Though after a seizure of goods by way of distress for rent, the papers upon which it was made be lost, and a sale takes place without them, the purchaser will acquire a good title.

In replevin by one purchasing under such circumstances, he may establish the authority to seize and sell by secondary evidence.

Replevin, tried at the Dutchess circuit in March, 1841, before Rugóles, C. Judge. The suit was brought to recover certain goods alleged to have been purchased by the plaintiff on a sale thereof under a distress warrant in favor of one Parks against the defendant. It appeared that soon after dis-training the goods in question, and before the day of sale, the officer lost the affidavit and warrant, which were not, therefore, filed in the town clerk’s office as required by statute. The plaintiff offered to give paroi evidence of their contents, but this was objected to by the defendant, and the judge excluded the evidence; holding that the officer, after the loss of the papers, was not authorized to go on and complete the distress, and therefore the plaintiff did not acquire title to the goods in virtue of his purchase. No further evidence being offered, the judge directed a nonsuit, and the plaintiff now moved for a new trial upon a case.

M. T. Reynolds, for the plaintiff.

S. Barculo, for the defendant.

By the Court,

The only question in this case is, whether goods regularly seized by way of distress for rent, can be sold so as to pass the title to a purchaser, if, intermediate the seizure and sale, the officer lose his affidavit and warrant, and they be not afterwards found. The ruling of the circuit judge was, in effect, that the officer, .by losing the paper, lost his authority to proceed; and con

p. 606

sequently the purchaser was denied the right of giving secón-, dory evidence of their contents. In this we think there was error. The statute, (2 R. S. 412, § 9, 2d ed.,) which requires these papers to be filed, has not made them an exception to the general rule respecting instruments lost or destroyed.

New trial granted.