Majority
p. 44Storm against Livingston. NEW-YORK, May, 1810.
Headnote
In an action of trover for x a horse, it was held that a demand of the horse from the wife or servant of the defendant and a refusal, was no evidence •of a conversion; that the defendant having purchased the horse at a constable’s sale, under execution, acquired the legal property. There must he a conversion proved before the commencement of the action; a sale afterwards, by the defendant will not avail.THIS was an action of trover. At the trial, the plaintiff proved that he was the owner of a certain horse, which he left in the care of one Tyler; that lie sent a person to demand him of the defendant, who had him in possession; but the defendant being absent from home, the demand was made of the defendant’s wife, and his servant, who .refused to deliver the horse.
The defendant proved that the horse was taken by a constable, on an execution against one M-Instry, and was sold at public auction by the constable, and purchased by the defendant as the highest bidder. The judgment against M-Instry was proved, but the execution was not produced. After the commencement of the present suit, the defendant sold the horse. On these facts, the judge, at the trial, directed a nonsuit.
A motipn was made to set aside the nonsuit.
The defendant came lawfully by the horse, by the purchase at the constable’s sale. No demand was made of him before the action was commenced, and so there was no conversion. The sale of the horse by the defendant after the suit was brought, cannot avail, as evidence of a conversion. The rights of the parties must be determined as they stood at the commencement of the suit. ( 3 Johns. Rep. 43 . 5 Johns. Rep. 54 .)
Judgment of nonsuit.