Mott v. Kip — 10 Johns. 478

Majority

p. 484

Mott and others against Kip, Sheriff, &c.

NEW YORK,

Oct. 1813.

Headnote

The declaraíion and confessions of a general depu ty of a sheriff toYneyo* ^the plaintiff in anriesreiativeTo deiivered1»” such deputyto be executed, and while the in force" 'are admissible e«dence to cliarge the

THIS was an action on the case for a false return. The cause . was tried at the Oneida circuit, in June, 1813, before Mr. Justice tz , ates.

The plaintiffs gave in evidence the record of a judgment and a testatum fi.fa. in their favour against Reuben Tomer, for 4,000 dollars of debt, and 15 dollars and 25 cents costs. The execu was delivered to John B. Pease, the defendant’s deputy, on the 16th October, 1811, at 8 o’clock A. M. on which the sheriff, by his deputy, returi^, that he had levied 204 dollars and 50 cents, and that the defeeáftftt had no other goods to satisfy the resí¿ue of the execution,

Pease, the deputy, was offered as a witness for the plaintiff, but being objected to by the defendant’s counsel as interested, and as incompetent to swear to the falsity of a return made by himself, he was rejected by the judge. The plaintiff then offered him to prove a conversation between him and one Tompkins, another deputy, who had also an execution against Tomer, said to be received subsequently to that of the plaintiffs’, and that Tompkins had levied on certain goods to the value of 1,000 dollars; but this evidence was objected to and overruled by the judge.

Jonas Platt, a witness for the plaintiffs, testified that Pease and Tompkins were acting deputies of the defendant; that soon after the execution of the plaintiffs was delivered to Pease, he told the witness that he had, immediately after receiving the execution, proceeded towards Sangersfield to execute it, and met Tompkins on his way, who said he had a ji. fa. against Tomer at the suit of one Stanton, and that he had levied on a store of goods at Sangersfield belonging to Tower, worth about 1,000 dollars, and had the key in his pocket; that he and Tompkins then compared their executions, and that it appeared by the endorsements on them that both were received on the same day, but the execution of the plaintiffs one hour before the other; that he, Pease, demanded of Tompkins the key, and a delivery of the goods, which he refused,

p. 485

saying he should apply them to the execution in favour of Stanton, and was indemnified for his proceeding.

The witness also testified that soon after his conversation with Pease, Tompkins admitted to him that the facts which he stated to him as related by Pease, were correct, except that nothing was said about the key of the goods.

On this evidence the judge ordered the plaintiffs to be nonsuited, with liberty to move to set. the nonsuit aside, and for a new trial.

Platt, for the plaintiffs.

Gold, for the defendant.

The testimony of Platt ought to have been submitted to the jury as evidence of the charge contained in the declaration. It related to the acknowledgments of Pease and Tompkins, the reputed and acting deputies of the sheriff. What an accredited agent or a deputy sheriff says, will, in certain cases, be competent evidence to charge the principal; and the question is, whether the acknowledgments, under the circumstances of this case, were not admissible. They were made soon after the delivery of the execution to the deputy Pease ; and though the case is silent on that point, we may well presume that the declarations were made while the execution was still in the defendant’s hands. It was probably, also, a conceded point on the trial, and one which the jury might well have inferred even from the case as it stands, that Platt, the witness, was the attorney or counsel concerned for the plaintiff in the execution; and that the acknowledgments were made to him in that capacity, and in answer to his inquiries in behalf of the plaintiff. Assuming these facts, (and which the case will warrant,) the declarations of the deputies were made to the party concerned, in relation to the business of the execution, and while the obligation of executing it existed in full force. They were made in the course of the transaction, and were to be considered as part of the act of the deputies touching the execution of the writ; and were, therefore, to be received in evidence to charge the defendant as sheriff. The case is thus brought within the reach of the adjudged cases upon this point. (North v. Miles, 1 Campb. 389. Bowsher v. Calley, 1 Campb. 391. note. Helyear v. Hawke, 5 Esp. N. P. 72. Peto v. Hague, ibid. 234. Yabsley v. Doble, 1 Ld. Raym, 190.)

p. 486

The confessions of the deputies proved the charge of a false return; for the goods in the possession of Tompkins, one of the deputies of the defeudanl, were liable to the execution in the hands of 13&tse, the other deputy-, as that execution was first received, and was to be first satisfied. (Smallcomb v. Buckingham, 1 Salk. 32.)

The nonsuit ought, therefore, to be set aside, and a new trial awarded, with costs to abide the event of the suit.

New trial awarded.