Hicok v. Coates — 2 Wend. 419

Majority

p. 419

Hicok vs. Coates.

Headnote

A purchaser consideration6 ?f chattels levled upon by an execution and main^in0 the jj^drfmdant under orders tiffto^he^herlff to suspend until further qU¡res titled the same’ and tain trespass she Jiff1 for dispossessing him erty. p[ea ;s an answer to but a part of the declaration, the plaintiff must demur, and doing so, he shall have judgment.

Where a party sets up title by purchase to personal property, claimed under a dormant execution, it is not necessary to aver time or place of purchase, or of directions given to suspend proceedings under the execution, nor that such directions were given to defraud, nor is it necessary to set forth the consideration paid; and the omission in the pleadings to set forth these particulars cannot be taken advantage of even by special demurrer.

Demurrer to pleadings. The declaration is in trespass de bonis asportatis. The goods charged to be taken are 100 sides of sole leather, 100 sides of upper leather, 100 calf 7 rEr 7 skins, Sic. The defendant pleaded, 1. Noncul; 2. Licence of the plaintiff; 3. A justification as to 12 sides of sole leathcr, parcel of 100 sides in the declaration mentioned, the defendant averring that by virtue of an execution on a judgment in favor of A. Blanchard against C. Woodruff, he, as a deputy of the sheriff of Cortland, levied on 50 sides of sole leather, 12 of which, by the connivance and procurement of Hicok, the plaintiff in this cause, and without the consent of him, the defendant, came to the possession of the plaintiff, having notice of the levy; and that thereupon, he, the defendant, in further execution of the writ, did peaceably and quietly take the 12 pieces of sole leather, as he lawfully might; and 4. A similar justification for all the property specified in the declaration, averring a levy under the same

p. 420

execution, a subsequent possession by the plaintiff, and a recaption as in last plea. The plaintiff replied to the second plea, denying the licence ; to the third, that the 12 sides of sole leather were sold to the plaintiff in the suit by the defendant in the execution with the consent of Blanchard, the plaintiff in the execution, and that the plaintiff in the suit was a bona fide purchaser for a good and valuable consideration, without notice of the execution or levy; and to the fourth, that after the levy under the execution, the defendant, by the order and direction of the plaintiff in the execution, suffered and permitted the goods levied upon to remain in the possession of the defendant in the execution, and subject to his control and disposal, and directed the defendant in the suit to desist and forbear from selling and disposing of the goods until he should be otherwise ordered by him; and that he, the plaintiff, did bona fide, and for a valuable consideration, purchase the goods of the defendant in the execution during the time that the defendant in this suit was ordered and directed . to suspend proceedings upon the execution. The defendant demurred to the replications to the third and fourth pleas, and assigned a number of special causes. The special causes of demurrer to the replication to the fourth plea are, 1. That the time when the goods were permitted to remain in the possession of the defendant by the order of the plaintiff in the execution is not stated with sufficient certainty ; 2. That it is not shewn for what purpose such directions were given ; and 3. That neither the time nor place of purchase by the plaintiff, nor the consideration of the purchase is set forth. The plaintiff joined in demurrer.

J. A. Spencer, for plaintiff

JV. Dayton, for defendant.

The plaintiff insists that the defendant’s third plea is bad, being an answer only to a part of the declaration ; and that even if the replication is defective, still, the defendant having committed the first fault in pleading, the plaintiff is entitled to judgment. The plea is certainly bad for the cause mentioned. The declaration

p. 421

claims a large number of sides of sole and upper leather and skins. The plea justifies the taking of only twelve sides of sole leather. Mr. Chitty says, (1 Chitty’s Pl. 509,) that such a plea is not demurrable, and that the plaintiff should take judgment as by nil elicit for so much as is not justified ; but this court, in Sterling v. Sherwood, (20 Johns. R. 204,) held a contrary doctrine, and said that the plaintiff should demur. The plaintiff is therefore entitled to judgment upon the demurrer to the replication to the third plea.

As the fourth plea is conceded to be good, the replication to it must stand upon its own merits. The facts stated in the plea are, that the defendant, as sheriff, had levied on the property in question, and that the plaintiff, knowing that fact, had improperly obtained possession of it; and therefore the defendant peaceably re-took the property, in order to execute the writ by virtue of which he had levied. The replication does not deny the levy, but says, that after the levy the plaintiff in the execution ordered the defendant (the officer) to suspend further proceedings till he, the plaintiff in the execution, gave further directions ; that during this suspension, Woodruff, the defendant in the execution, with whom the property was left, sold it to the plaintiff in this suit for a valuable consideration. Assuming these facts to be true, the plaintiff had a good title to the property. The plaintiff in the execution, in consequence of the directions given by him to the defendant, (the officer,) lost his lien upon the property ; the execution became dormant; and any other creditor would have had a right to take it, or a purchaser for a valuable consideration would acquire title to it. The replication is therefore good in substance.

As to the form of the replication, it is objected that no time or place is mentioned when the orders were given to stay proceedings, or when the plaintiff purchased the property; the answer to which is, that neither of those facts was necessary to be averred. Where time and place are not material, the time and place in the declaration cannot be departed from in the plea or replication, and therefore need not to be repeated. (2 H. Bl. 261. 1 Chitty’s

p. 422

Pl. 624. 1 Saund. 8, n. 2.) Nor is it necessary that the delay should have been made with a view to defraud any one. Where the plaintiff in an execution directs an indefin^e staJ °f proceedings, such direction is a supersedeas to the execution so far as third persons are concerned. Nor was it necessary in this case to set forth in the replication the consideration paid by the purchaser; that is required only in cases where the rights of an assignee prosecuting in the name of the assignor are to be protected. So are the cases cited. (17 Johns. R. 284. 1 Mass. R. 117 . 1 Cowen, 620. 6 id. 151 .) Here the plaintiff purchases as if no execution had issued. The consideration is a subject for the inquiry of the jury, to ascertain the bonafides of the purchase ; but it is not necessary to be stated in pleading.

The plaintiff is entitled to judgment on the demurrer, with leave to the defendant to amend on payment of costs.