Majority
p. 45High against Wilson, Sheriff of Washington county.
Headnote
This was an action for trespass against the defendant, for taking the goods and chattels of the plaintiff. Plea, not guilty. The cause was tried at the Washington cir-0,7 ° cuit, the 4th of June, 1806, before Mr. Chief Justice ixent.in trespass by gainsTaTherl iff f?' s*izinK goods under a fieri facias the sheriff in order to justify uie^judgment as.^elIbastth.® the court are ther«fewas,hat fraud, and that the plaintiff is not entitled to recover, they will not award a new trial where there has been a verdict for the defendant, though the record of thv judgment was not produced at the trip-’.
One of the deputies of the defendant, by virtue of a fieri facias, against the property of one James Blanchard, seized two horses, which he found in the possession of Blanchard, as his property; but which the plaintiff claimed as belonging to him.
The plaintiff proved that, in April, 1803, he purchased the same horses of Blanchard, for which he gave his promissory note ; that he kept and used the horses two days. They were, afterwards, in the possession of Blanchard, but for what reason, or on what terms, did not appear. They continued in the possession of Blanchard until they were taken in execution. The counsel for the defendant then moved for a nonsuit, because the property being in the possession of a third person, trespass could not lie, but the chief justice overruled the motion. The defendant then proved, that the horses had been
p. 46
the possession of Blanchard, who had worked and used them before they were taken by the defendant, and after they had been in the possession of the plaintiff; and that when the horses were seized on the 20th of June, 1803, they weip harnessed to the waggon of Blanchard, and in his possession ; that Blanchard was a person in bad circumstances, and a neighbour of the plaintiff, with whom he was well acquainted.
It was contended on the part of the plaintiff, that the defendant, in order to make out a justification under the fieri facias, ought to produce the record of the judgment on which the execution was awarded. This objection was overruled by the judge, who directed the jury, that the circumstance of the horses continuing for so long a time in the possession of Blanchard, after the sale, was evidence of a fraudulent transfer, and that if they believed that the sale was fraudulent, they ought to find for the defendant, otherwise for the plaintiff. . The jury found a verdict for the defendant,
A motion was now made for a new trial on the ground, that the defendant should have produced the record of the judgment on which' the fieri facias issued.
Wesion, for the plaintiff.
It is well settled that trespass is the proper form of action in this case; and that When brought by a stranger against the officer, he must, in his justification, produce the record of the judgment, on which tho fieri facias issued.[1]
Shepherd, contra.
In Turner v, Felgate,[2] it is said that it is enough for the sheriff' to plead the writ only; but the party must plead the judgment as well as the writ. The contrary doctrine would be extremely inconvenient. Officers in remote counties would be obliged to consult .the records of the court, before they could venture to serve a fieri facias. Though the writ may not be a justification in all cases ¿ yet the present is one thot ought to i>vin an exception to the rule- The writ \vas served
p. 47
by a deputy; and the sheriff is not answerable for his acts, unless done in pursuance of his authority and duty. It was admitted on the part of the plaintiff, that the goods were seized by a regular execution; the court ought then to intend that there was a judgment. Again , in every action of trespass, the plaintiff must have either an actual or a. constructive possession.[3] Here the plaintiff had neither. The sheriff cannot be made a trespasser by reiion.[4] But the sale was clearly fraudulent and void, and so the plaintiff was not entitled to recover. The court ought not therefore to award a new trial when there is no justice on the side of the plaintiff.
Weston, in reply.
Every officer is bound to know that the property he takes belongs to the defendant. The only evidence of fraud, is permitting Blanchard to be in possession of the horses: But this may have been on just and lawful grounds; other, evidence may show that the sale was fair and Iona fide, and so the plaintiff be entitled to recover.
The defendant now produces the record of the judgment to show that it supported the fieri facias. It is settled, that when a stranger sues the sheriff', the latter must produce the judgment as well as the writ, to justify his seizure. The defendant in this case did' not produce the judgment at the trial. But we are all-clearly of opinion that the plaintiff had no right of action, for the sale of the horse was evidently fraudulent. On the authority of the case of Masten v. Podger,[1] there - appears to be no use or justice in granting a new trial-when the plaintiff is not entitled to recover. For that' reason the rule is refused.'
Judgment for the defendant.
* 5 Burrows, 2631.