Wylie v. Hyde — 13 Johns. 249

Majority

p. 249

Wylie against Hyde and Hyde.

Headnote

The jury, ¡a a justice’s court. cannot verdict-j£/tir||J^er “c¿UvlSfot!°u

of^Leuuons* ¡¡“urt. jepsmda of1 ““delivering to6ttóXcoastá.«me of actual

itissufficient, if a constable le'y ™ anexecution, and ad-^‘isnef°a*aJ®,¿ “ewedueexli arter^’he'expidays.” prodded made before the the” writ';ay anl be valid against an intermediate levy and sale oa another execution.

ti0^d on qlien?yt0 the lei. both wwS “ the 20 days'

IN ERROR, on certiorari tó a lust-ice’s1 court. ? ‘

This was aji action of trover for a sleigh, brought by the defendant in error against the plaintiffs in error. The jury in the court below found a special verdict, which’stated, that, on the 6th of August, 18-13, the plaintiffs below recovered judgment before a justice of the peace, against Samuel Burnam, for 23 dob lars and 60 cents : that, on the '6th of September, 1813, execution was issued thereon, and delivered to a constable, who, on the 23d of September, levied on a sleigh, the property of Burnam, and the same day advertised it to be sold On the 29th of , September then instant, at which day it was sold at public ven- . due to the plaintiffs below, but no endorsement was made on the execution of the time of such levy: that, on the 13th of September', 1813, one Lynch, recovered a,judgment before the Same justice, against Burnam, for 16 dollars and 31 cents ; and. that an execution was issued thereon, and delivered to another constable, by consent of Burnam, who made a levy On the same day on the before-mentioned sleigh, and endorsed the levy on i i i _ . his execution on that day, and on the 2d of October save notice that the sleigh would be sold on the 9th of that month, when it was, accordingly, sold, at public vendue, to Wylie, the defend-

ant below: thát notice of the prior levy was given by the second constable to the constable who had the first execution, before his levy was made, and he gave such notice to the plaintiffs below, before the sale, who directed him to Sell; and at, and .before, the second sale, notice was given by the plaintiffs to the defendant of the prior purchase: that the sleigh was never removed from Burnam’s barn until after the sale to the defendant .below, who then converted it to his own uSe; and that the judgments and executions, and the proceedings thereon, were bona fide, and without fraud ; and that the value of the sleigh was 25 dollars. On the verdict being presented to the court, the defendant below objected to a special verdict being received; but the justice overruled the objection, and received the verdict, op which he gave judgment for the plaintiffs below for the value of the sléigh, and costs.

delivered the opinion of the court. I am’inclinedi0 think that' no judgmfen.t can be rendered on a special verdict in a .justice’s court. The act. constituting those courts is silent on the subject. The 29th section of the áct for regulating trials by issues* and for returning able and sufficient jurors, does not apply to justices’ courts. It ordains that no-jury, upon aiiy trial thereafter to be had* shall, in any cáse, bé compelled to give a genera) verdict* so that they find a special verdict,‘and, show the truth of the fact, and-require-the pid-of the court or justices.

By this, as well as the preceding sections of the act, it would appear that the.rendering of special verdicts is-hot extended to inferior tribunals ; and, according to .the principles laid down in Day v. Wilburn, (2 caines Rep. 135.,) the privilege hot having been specially gi-yenbystatute.to jurors injustices’courts,: ■it cánnot be exercised in those courts. . That case states,' that proceedings under the 10 pound act are to be reghlated entirely that act, and that the aot relative to common informers does not apply to such proceedings.

This court have, decided that a demurrer tq evidence is a pro-. eééding inapplicable tó.a jústiee^s^cé.urt* because-justices are not, generally, acquainted-■withthq science of law; ( 3 Caines' Rep, 140 .;) vet, - should special verdicts be allowed in such a. court, the.sanie legal .knowledge Would be requiffité'tó enabíe a justice to render judgment dfl such, verdict, because,, in ]6ne .ifi- ' stance, the facts áre admitted by the party, and, in.the other, they are found by the jury; and the only question in-either Case is a question of law* to bn determined by the justice. Besides, it might be attended ’.with ^unavoidable injustice to a. party ; for -d special verdict',might be so. defective that nOjudgment'could be rendered thereon, In such case the practice of othér courts^[1] . (having, the power) is, to award a venire-facias "de noyó. This a justice cannot.do. " The party,, consequently, wopld be without a remedy in that .cause, and would be obliged to commence a new action.: it, therefore, appears to be manifestly unfit and improper that special verdicts should be allowed in justices’ courts. .But.qdmi.tting that the special verdict, in this instance, could be received, the judgment rendered .on if would be erroiieous.

It appears that the constable, under whom the plaintiffs in •jerror claimed,/levied on dhe sleigh theT3.th of September, arid 'the .'constable, under whom- the' defendant iñ-error claimed,

* Sellon, 495.

p. 251

levied on the 23d of September. This was sufficient to entitle the plaintiffs in error to récover in the court below, if the s'ubsequent proceedings of the constable were correct. The prior delivery of the execution in favour of the defendant in error could not alter the effect, because the date or time of issuing, or delivery to a constable:, of executions, issuing from a jus-’ tice’s court, cannot be material in determining what property is held by it. Each town and city has a number of constables in it, , and if such á rule prevailed it would create the greatest corifusion. The time of making the levy only can control the right to the property, and that alone can Create the lien ; it then, and not before, is properly in custody of the la w.

The thirteenth section of the twenty-five dollar act declares, that in case any constable to whom any execution shall be delivered shall not, within twenty days after receiving such execution, levy the same on the goods and chattels of the person against whom such execution shall be granted, and in ten days thereafter pay the debt,, he shall be Iiolden to pay the amount of the execution. . According, to this section, if the constable make the levy, and advertise within 20 days, and sell within the life of the execution, it is sufficient. The execution in favour Of the plaintiffs in' error-was delivered,, and the levy made, oh the 13th of September; the constable advertised On the 2d of October, within the 20 dayS, arid sold on the 9th, clearly before -the return of the execution; the proceedings were, therefore, perfectly regular; and the constable who iriade the. second levy had no right (especially after notice given) to sell the property; and. the above, in part, recited section of the act is explanatory of, and must control, the preceding section of the act,' which ordains that the constable,: after taking the goods and chattels in his custody by virtue of süch execution, shall immediately give public notice by advertisement, signed by himself; &c..; it is evident that the term immediately, thus used, cannot be so construed as to intend that, because the property first levied had not been immediately advertised, the lien thereby created should be destroyed, and that the second levy should prevail. It is enough if the advertisement is within 20 days, so that the sale may bemade at any time before the return of the execution. The judgment must be reversed,

Judgment of reversal..