p. 480Headnote
In a suit by a third person against an officer for taking property by virtue of an execution, the officer to protect himself, is bound to show a judgment as well as execution.A nonsuit may be granted after evidence lias been given on both sidps.
Error from the New-York common pleas. Jansen sued Acker and Rich in an action of trespass de bonis asportatis. He claimed title to the property under a bill of sale from one James Anderson. On the cross-examination of the plaintiff’s witnesses, the defendant attempted to show the sale fraudulent. The plaintiff rested ; and the defendants, who were the sheriff and a deputy sheriff of the city of New-York, read in evidence an execution against Anderson but did not produce a judgment sustaining the execution, and then moved for a nonsuit. Counsel were heard for and against the motion, and the court ordered a nonsuit to be entered. The bill of exceptions then stated “ whereupon the counsel of the said plaintiff conceiving that by the law of the land the several matters so as aforesaid, produced [ *481 ] . and *given in evidence on the part of the plaintiff were sufficient evidence to carry the cause to the jury, and that the cause could not be taken from the jury and a nonsuit entered after evidence had been given on the part of the defendant, made his exception to the said decision of the said judge, and inasmuch,” &c. The plaintiff sued out a writ of error.
J. L. Wendell, for the plaintiff in error.
S. Stevens, for the defendant in error.
By the Court, However fraudulent the sale from Anderson to the plaintiff may have been as against the creditors of the former, it was nevertheless valid as between the parties to the transaction; and the defence was not complete without showing a judgment, as well as execution against Anderson.
It was said on the argument that the plaintiff did not suggest this objection on the trial. That is more than we can see, or are authorized to infer from the bill of exceptions. The plaintiff resisted the motion for a nonsuit, and although it appears that the question was argued on both sides, it does not appear what reasons were assigned either for or against the motion. Under such circumstances we can make no presumption against either party —certainly not in favor of one and against the other. The exception is mainly directed against the power of the judge to nonsuit the plaintiff after evidence had been given upon both sides, a position which cannot be maintained, But I am inclined to think that the exception was not only designed
p. 481to raise that question, but also the question whether the nonsuit was proper on the whole case as it appeared. The judgment must, therefore, be reversed and a new trial ordered in the C. P., when the defendants will have the opportunity of producing the judgment as well as the execution against Anderson.
Judgment reversed.