Acker v. Burrall

Headnote

A covenant entered into by a third 'person, on receiving property levied upon by a sheriff, to deliver it to the sheriff on request or pay the debt, is a valid obligation within the statute 'declaring void all bonds, &c., taken by a sheriff or other officer by color of his office, in any .case or manner other than provided by law.

"The statute forbids only what is illegal, it vitiates securities taken for ease and favor; and does not render void securities authorized -either by the common law or statute. Unless there is duress or oppression or illegal exaction, the security.is good.

A-levy upon partnership property, by virtue -of an execution against one partner, cannot be alleged as illegal in bar to &n action upon such covenant; especially where, the other partner consented to such levy. .

Demurrer to declaration. The plaintiff declared on a covenant executed by the defendant, whereby, after reciting that the plaintiff, as sheriff of the city and county of New York, had levied upon $8511 56 in bank bills, $300 in treasury notes and $150 in gold) by virtue of an execution in favor of John T. Smith'Ds. Horace Janes, and had on request left and permitted the same - to remain in the possession of the. now' defendant Burrall, the defendant in consideration of the premises and of one dollar to him in hand paid, covenanted and agreed with the;, plain tiff to deliver to him the said property upon request; and in default thereof to pay and satisfy to the plaintiff the amount to be levied on the said execution and all fees and poundage thereon. ' The plaintiff assigned the non-delivery of the property upon request made, as a breach. . The defendant pleaded, 1. That the goods and chattels specified in the declaration were not the property of Horace Janes ; and 2. That at the time of the levy the defendant and Horace Janes were copartners, and that the goods and chattels levied upon were at the time of' such levy the property of and belonging to the said co-partnership, and that the defendant as such copartner, after the making of the covenant and before request to deliver property to the plaintiff, applied it to the uses and purposes of the copartnership. To these pleas the plaintiff demurred.

contended that the covenant was. void,0 as taken.colore officii, contrary to the statute, which delares that “no sheriff or other officer shall take any bond, obligation or security, by color of his office, in any other case or manner than such as are provided by law ; . and any such bond,' obligation ' or security, taken otherwise than, as herein directed shall be void.” 2 R. S. 286, § 59. He admitted that under the former statute a receipt taken by a sheriff for property levied upon, had been held valid, and.possibly it might be. adjudged good under the present statute, as being neither a bond, obligation or security within the terms of the statute. He "however urged that the intent of the statute was to declare void all securities taken in any other case or manner than such as are provided by law. No provision is ‘ made by law even for the taking of a- receipt; and if the statute should operate inconveniently, the legislature only are responsible. The language of the act is clear and explicit, and the. court cannot make any exceptions. That this statute is much broader, both as to subject matter arid persons, is stated by Mr. Justice. Cowen, in 19 Wendell, 191. If it should be conceded that a receipt taken would be held valid, it- did not follow that .a covenant like that in question would be adjudged good.; the engagement of the receiptor- is to deliver up the property ox pay its value, whereas the alternative here is to pay the debt—the amount to be levied on the execution, The debt might greatly exceed the value of the property, and thus the officer might abuse the power he possessed. ' This was an evil which the statute was calculated to prevent, and the covenant should therefore be adjudged void. He also insisted.' that the first plea, whibh alleged that the goods" and chattels were riot the property of Horace Janes, was good. The sheriff is authorized to levy upon gold, coin and bank ■bills belonging to the defendant in an execution." 2 R. S. 366, § 18, 19. Here the demurrer admits the property, did aot belong-to him. Had the defendant been a receiptor and

the property taken from him by paramount title, such fact would have created a bar to a recovery against him. 13 Mass. R. 224 . Story on Bailment, 98. 16 Wendell, 335. The second plea also, he urged, constituted a perfect defence. On an execution against one partner, the other partner cannot be deprived of the possession of the partnership property ; if any interest in the partnership property can be sold under an execution against one partner, it is only his equitable interest. 16 Johns. R. 102, n. 15 Vesey, 559. 1 Wendell, 311. 12 id. 131.