author: Mullin, J. Selden, J.

text:
    John Roth and James C. Roth v. Julia A. Wells, Executrix, &c.
    To constitute a valid levy, the officer must enter on the premises where the goods are, and take possession of them, if that be practicable; if not, then he must openly and unequivocally assert his title to them by virtue of the execution.
    It is not essential to the validity of the levy that the officer take actual possession of the goods, or that he remove them from the custody of the debtor.
    The test of a valid levy is whether enough has been done to subject the officer to an action of trespass, but for the protection of the execution.
    Where a sheriff went to the store of judgment debtors, saw the goods, asserted his right to them by virtue of his levy, in the hearing of one of the debtors, and subsequently, on the same day, caused the fact that a levy had been made to be indorsed on the execution, by a deputy; Held, this was a valid levy.
    Where judgment debtors have sold a part of the goods which have been levied upon, and other goods of the same general description have been purchased and put in the places of the former, such substituted goods are liable on tho execution, if the judgment debtors neglect, on request, to designate the goods dn which the levy was made, and no inventory was taken by the sheriff. Under such circumstances, the sheriff is justified in taking the whole.-
    The substituted goods become liable, in such a case, because the judgment debtors have voluntarily mingled goods not liable to be sold with those that were.
    Where "a witness, testifying to matters material to the issues being tried, as to which deliberate false swearing Would be perjury, is contradicted by other witnesses, it is not erroneous for the judge to charge the jury that if they believe" the witness has knowingly sworn falsely in reference to any fact, he is not entitled to be believed in reference to any other fact testified to by him.
    A sheriff went to the store of judgment debtors With executions. He there looked the goods over, and saw the judgment debtors, to one of whom he showed the executions, and who told the sheriff he need not levy the executions, for they would be promptly paid. On being asked if he could pay them then, he said he could not. The sheriff then told him he (the sheriff) could hold the levy, but would give him a little time to pay. The levy was endorsed on the execution the same day. Held, that the goods being present and within the power of the sheriff, these circumstances constituted such an exercise of dominion over them as amounted to a levy—at leastas against the defendants in the execution. Per Selden, J.

      The goods of the defendant in an execution within the jurisdiction of the sheriff, as against the defendant, are by the revised statutes bound from the time of the delivery of the execution to the sheriff to be executed; and the reason upon which this rule is founded must extend the lien to all goods acquired by the defendant, within the jurisdiction of the sheriff, during the life of the execution. Per Seiden, J.
    This action was brought by the plaintiffs who were partners, residing and doing business as dry-goods merchants in the city of Troy, to recover the value of certain goods seized by William Wells, the defendant’s testator, as sheriff of the county of Bensselaer, and sold by him by virtue of four executions issued on judgments recovered against said plaintiffs in the supreme court in the fall of 1857.
    The grounds on which the plaintiffs sought to recover were:
    1. That the defendant never made, or attempted to make, a levy on the property which he subsequently sold.
    2. That the levy, if there was one, was not valid so as to entitle the sheriff to sell said property.
    3. That the executions were paid; the plaintiffs having delivered to the .sheriff their check secured by endorsed notes as collateral, which the sheriff accepted in payment of the said executions.
    4. That the sheriff seized and sold, by virtue of said executions, a large quantity of goods which had been purchased after the time when the defendant claimed to have made a levy on the plaintiffs’ property.
    On the trial, the plaintiffs gave evidence tending to prove that on the 24th August, the day on which the defendant claimed to have made the levy, the defendant was not at home; but, on the contrary, was absent all day from the city; that John Both, who had charge of the store in Troy, did not learn of the issuing, of executions on said judgment, until about half past eight in the evening of the last-mentioned day, when he and one Nelson Both called at the defendant’s office and were shown the executions by a deputy, by whom they were told of the absence of the defendant, and that when the executions were shown them, there was no endorsement upon them of any levy, nor of the time they were received. Evidence was given, on the part of the defendant, tending to prove that the executions in question were received by the defendant about eleven A. M. of the 24th August; that immediately thereafter he called at the plaintiffs’ store and exhibited the executions to one of the plaintiffs, made a levy on the goods, of which he informed one of them whom he foilnd in the store, and after dinner delivered said executions to his deputy with directions to enter thereon the levy, which was done on the same day.
    2. As to the validity of the levy. The defendant gave evidence tending to prove that when he went into the store on the 24th August, he went up stairs in the rooms where the plaintiffs’ goods were, and saw the goods, and thereupon informed one of the plaintiffs that he. had levied on said goods, and directed the endorsement ‘of the levy as above mentioned.
    3. As to the payment of the executions, the plaintiffs gave evidence tending to prove that on or about the same day of the alleged levy by the defendant, the goods of Nelson Both, a brother of the plaintiffs, and a co-defendant in the executions, had been levied on by the 'sheriff of Oneida, by virtue of executions issued to the sheriff on the said judgments; that in order to relieve his brother’s goods from said levy, John Both applied to the defendant to take his check and certain endorsed notes in satisfaction of the executions in his hands, which proposition was accepted, and the check and notes were delivered to the defendant, and a receipt in full of the executions given to said John, together with an agreement that when the said check was paid the defendant would deliver back the notes held as collateral. Afterwards the sheriff brought actions on said check and collateral notes, which he discontinued before he sold the goods in question in this suit.

      The defendant admitted that the arrangement above-mentioned was made, but alleged that it was understood that he was to retain his levy on the goods, which was denied by the plaintiffs.
    4. As to the sale of goods purchased and put into the store after the levy, it is not denied by the defendant, but evidence was given by him tending to show that at the time the goods were removed from the store, the deputy of the defendant-requested John Both to designate the goods levied on by the defendant, to which no answer was given, and the goods were taken without regard to whether originally levied on ór not.
    The plaintiff’s counsel requested the court to charge the jury that the acts done by the sheriff on the 24th August did not constitute a valid levy on the goods in- the store. The court refused so to charge, and the defendant’s counsel excepted.
    The court charged that if a sufficient levy was made on the 24th August, and the executions remained in force when the goods were taken, on the 18th November, they might regard the levy as continued and covering the goods purchased subsequent to the levy and during the life of the executions,' such goods being in the same place—of the same general description as those levied’ upon—and being purchased to supply the place of goods sold by the debtor after the levy, or making additions to the stock. To which, the plaintiff’s counsel excepted.
    The plaintiff's counsel requested the court to charge the jury that if the levy was valid, yet the defendant was a trespasser for taking the goods purchased subsequent to the date of the levy. The court refused so to charge, and the plaintiff’s counsel excepted.
    The court further charged, that the plaintiffs’ were enti-, tied to recover for the goods taken by the defendant which had been purchased and put into the store after the 26th day of October, the day said executions were returned. But, in respect to the goods so acquired, the court, at the request of the defendant’s counsel, charged the jury that they were the judges of the credibility of witnesses; and if they believed John Both had knowingly testified falsely in reference to any fact, he was not entitled to be believed in reference to any other fact testified to by him. To the last proposition, the plaintiff’s counsel excepted.
    The jury rendered a verdict for the defendant. The plaintiffs’ counsel thereupon moved for a new trial, on the judge’s minutes, which motion was denied. The plaintiffs appealed to the general term of the third district, and that court affirmed the judgment (see 41 Barb. 194, S. C.), and from that judgment the plaintiffs appealed to this court.

      John H. Reynolds, for the appellants.
    I. The acts of the sheriff on the 24th of August, 1857, which are claimed to amount to a levy upon the goods in the plaintiffs' store, are, according to his own showing, the following: He went to the plaintiffs’ store and found James C. Both there up staffs. He (the sheriff) looked the goods over, up stairs and down. Very soon John Both came in, and the sheriff showed him the executions. He said “ I need not levy them, for they would be promptly paid. I asked him if he could pay them then. He said he could not. I told him I could hold the levy, but would give him a little time to pay. That was about all that was said.” On the same day, the sheriff directed his deputy to make an endorsement of levy on the executions, which was done.
    1. It is submitted that this does not amount to a levy. There was no act of the sheriff taking any possession of the goods, and no oral assertion of dominion over them, or. that he in fact levied upon them. Saying that he could or should hold the, levy, was not making a levy. That language refers to a levy before made; and if none had been made, it amounts to nothing. (Camp v. Chamberlain, 5 Denio, 198; Barker v. Binninger, 4 Kern. 270.)
    2. Here the entire defense rested upon the question whether, on the 24th of August, a legal levy had been made upon the goods then in the-plaintiffs’ store, and the same acts are necessary to constitute a levy, whether the question arises between the sheriff and the judgment debtors or any other party. In any case, enough must be done to make the officer a trespasser but for the protection of the execution. Upon the evidence of the sheriff, in this case, as to what was done by him on the 24th of August, it is denied that Both & Co. could have maintained an action of trespass against him, and the exception to the refusal to charge, as requested by the plaintiff, was. well taken.
    H. The judge erred in instructing the jury that if there had been a sufficient levy made on the 24th of August, they might regard the levy as, continued and covering the goods purchased -subsequently during the life of the execution.
    I. There is neither authority nor sound reason for this position, but it is at war with both. ' A levy upon a specific article of property, which- is disposed of by the debtor, or destroyed, can not attach to another article procured to supply its place. (Shelton v. Westervelt, 1 Duer R. 109.)
    2. It is not denied but that to constitute a legal levy the property must be in view of the officer during the life of the execution, and he must do something with it, or make such an assertion of his right as would subject him to an action of trespass but for the. execution. In respect to all goods purchased by the plaintiffs after the 24th of August, it is not pretended that during the life of the execution the sheriff ever saw them or did anything with respect to them which could make him a trespasser.
    3. If after a legal levy the debtor 'in whose possession goods are left by the sheriff sell them or refuse to produce them, the sheriff may maintain an action for their conversion, by virtue of the title which is created by the levy. But in res}Dect to goods purchased by way of additions to a stock after a levy, it is submitted- that the sheriff could maintain no action for them, if not forthcoming to satisfy the execution.
    ' 4. The fact that as against the judgment debtor the goods are bound, from the receipt of the execution by the sheriff, proves nothing on the question whether there has been an actual legal levy. Although bound by the execution during its life, the sheriff cannot sell them afterwards, ‘unless during the life of the process he has made a levy-up on the.m.
    5. Here there was no attempt to take the goods until after the return day of the execution, and there was no right, to take any property except that upon which there had been an actual levy. And it does not aid the defence that the subsequently acquired property might have been seized under the execution during its life.
    HI. The judge erred in charging the jury that if they believed that John Both had knowingly testified falsely in reference to any fact, he was not entitled to be believed in reference to any other fact testified to by him.
    1. There was nothing in the case which authorized the judge to submit to the jury the question whether John Both had knowingly testified falsely.
    2. And if there was, it was wrong to tell the jury not to believe him in respect to any other fact, as the judge in effect did,

      W. A. Beach, for the respondent.
    I. The proof was abundant to show a formal and effectual levy.
    1. The endorsement of levy was presumptive evidence of the fact. John Both swears that he saw the executions on the evening of the 24th of August, and that no endorsement of levy was then made. In this he is contradicted by the endorsement, and by Wells and Hegeman.
    2. The levy was notorious and perfect, even as against conflicting executions. The property was in view of the officer, subject to his control, and he asserted his authority over it, by virtue of the executions. This constitutes a valid levy, in the strictest sense. (Barker v. Binninger, 14 N. Y. 270; Connah v. Hale, 23 Wen. 462.)
    II. The plaintiffs failed in establishing the proposition that the executions were paid.
    1. The receipt given by the defendant on the delivery" of the check and notes was subject to explanation. It was not conclusive as a return of satisfaction on final process.
    2. The receipt was satisfactorily explained, consistently with the life of the executions, and a continued levy. The testimony of Wells, adopted by the jury, shows that a levy was made on the 24th of August; that on the 25th John Eoth, by persuasion, induced the defendant to execute the receipt to relieve the property of his brother from sale for the same debt, the levy, nevertheless, to remain good. This account is maintained by the testimony of George Weaver, a subordinate in the sheriff’s office; also by that of Hegeman, who called twice upon Eoth, in October, with the executions, urging payment. To him Eoth did not pretend that the executions were paid until at the interview in November, when the goods were removed. Also by the form of the check, and defendant’s action with it. It does not appear whether or not it was payable ahead; but it was on interest, and was not to be presented until near the return day of the execútions, and was not presented until then. ' Immediate payment was not contemplated. It would be absurd to say that the sheriff intended to or did discharge the executions, under such circumstances. The prosecution of the notes does not affect the question. If delivered as security for the executians, or as indemnity to the sheriff for his indulgence, their prosecution does not sustain the idea of payment; The circumstance is of no significance. It happened during the illness of defendant, at the suggestion of Hegeman. The suit was undoubtedly resorted to as an expedient to induce settlement; but Dater, the endorser, defended, and it was abandoned. The evidence was, therefore, ample to uphold the finding of the jury.
    HI. The check and notes having been received by the defendant, not as payment nor even as consideration or security for indulgence, did not in any wise interfere with the collection of the executions. The receipt was given for the sole purpose of relieving the property of Nelson' Both, levied upon at Utica. The checks and notes were received as indemnity against that irregular and unauthorized act. Assuming that they were valid in the defendant’s hands, they did not interrupt his power under the process. There was no understanding, even, to that effect. The receipt was given for a specific purpose, and the check and notes were the incident of it. The receipt was false and explainable. It was, however, entirely inoperative for any purpose.
    IV. Had the check and notes been received in payment, they were void in the hands of the defendant, having been taken by color of his office. (2 B. S. 286.) The receipt, being founded upon them, of course, fell with them. It has , been- held, that a note given to a deputy sheriff by a judgment debtor for the amount of an execution held by the former against the latter after the sheriff had been attached, and the deputy had paid the execution, was valid. It was supported, upon the idea of a moral obligation, connected with the prior legal liability. The decision does not maintain the validity of a note executed to the sheriff while holding an operative execution. The court held the case was not within the statute. (Sternbergh v. Provoost, 13 Barb. 365; see also Armstrong v. Garrow, 6 Cow. 465;
      Reed v. Pruyn and Staats, 7 John. 426; Sherman v. Boyce, 15 id. 443; Strong v. Tompkins, 8 id. 98.) Where the sheriff received a promissory note in satisfaction of a Oa, Sa. and discharged the defendant, the plaintiff in the writ prosecuted the sheriff to judgment. The court held that he might have taken a -new execution, or sued the sheriff for an escape, or “ affirmed the acts of -the sheriff, considered the execution paid, and called upon him for the money.” Various authorities were, however, cited, showing' securities thus taken to be void in the hands of the officer. If the check and notes were void by express statute, in the hands of the defendant, it must follow that the receipt, so far as the plaintiffs are* concerned, was wholly inoperative. If the former did not operate as a payment, the latter could not be proof of payment. The court below instructed the jury “ that if, as between the plaintiffs and the judgment debtors, or ás between the defendant and the debtors, the executions were paid and satisfied by the check and notes,” “ or were so treated,” the defendant was a trespasser and liable. This was sufficiently severe against the defendant. The proposition may be true in the abstract, but it fails to discriminate between a professed payment thus made to a sheriff, which is adopted by an execution creditor, and one repudiated by him, and overlooks the consideration whether or not the process is returned satisfied. It cannot be that a sheriff can receive a promissory note in payment without returning the process, and thus obstruct the creditor in the pursuit of his remedy. Nor can the creditor be compelled to adopt the payment so made. He may reject it, and require the sheriff to proceed with his process. The debtor cannot answer that he has paid the sheriff by note or other security. The officer had no authority to accept payment in that mode. He was acting under a special power, prohibiting every arrangement of that character. The debtor was charged with knowledge of its limitations. He could not conspire with the officer to prejudice, or defer, by any means, the rights of the creditor. . The charge was, therefore, too unfavorable for the defendant in this respect. The court further charged, that if the cheek and notes were received by the defendant in payment, with an agreement that the executions might be enforced if the check was not paid, such an agreement would be illegal and the defendant a trespasser. It is submitted that the condemnation of the law is imperfectly applied in this instruction. The whole arrangement was illegal; the check -and notes were void in the hands of defendant; he had no power to receive them, and make such an agreement. But it by no means follows that*he was a trespasser; the executions in his hands survived; they were levied, and in full life; the void arrángement did not affect them, or his power under them, or diminish the rights of the creditor. He still held them, unreturned and unsatisfied, their mandate and lien still peremptory and efficacious, It is not perceived how he became a trespasser. In this respect, also, the plaintiffs were favored by the charge.
    V. The levy of August 24th, made upon the stock of goods, was a continuing levy, and covered goods. subsequently purchased, and substituted for such of those originally levied upon, as were from time to time sold.
    1. The goods of the plaintiffs were bound by the executions, from the time of their delivery to the defendant. (2 R. S. 306, § 6; Ray v. Birdseye, 5 Den. 619.) As against an execution debtor, no formal levy is requisite. There is a constructive levy, by operation of law, good against him up to the return day of the process. At'any time’within that period the defendant could have removed the property. There being an actual levy, it drew to it all newly acquired property, upon which the lien of the executions attached. Once having levied, a sheriff is not required to levy anew, upon process subsequently received, for the' reason that the property is already in the custody of the law. (Birdseye v. Ray, 4 Hill, 159.) Upon a like principle, there being an actual levy, there is no necessity of a new levy upon future acquired property. The constructive levy covers it. The only effect of an actual levy is to continue the power of the officer beyond the return day of the writ, for the purpose of sale. This is the necessary effect of the lien, created by the delivery of execution- to the sheriff. This lien must be good against the judgment debtor, so long as the execution is in life. By virtue of the lien thus created, the sheriff may seize and sell, according to law, whatevel’ is subject to it. It follows that whatever goods the plaintiffs acquired prior to the 24th October .(the return day) were subject to this lien, and liable to seizure and sale. So, also, as to goods acquired after the return day, as against the plaintiffs. The executions were then in full force. All the property of the debtors, liable to levy, was bound by them, pledged by operation of law to their satisfaction. The debtor has no right to insist that the lien was not enforced. Others might, but upon what principle can he object? He might as well complain that a sale was not made in sixty days.
    2. If otherwise, the defendant was still justified in taking the goods, indistinguishably mingled with those levied upon. The judge was exceedingly precise and cautious in the rule of law adopted. He extended the levy only to “ goods being in the same place, of the same general description as those levied upon, and purchased to supply the place of goods sold by the debtor, after the levy.” It is not necessary to say that the substitution, by the judgment debtor, of other goods of the same class as those levied upon, subjects the former to the force of the levy. If he appropriates the property levied upon, and replaces it with other of like character, there seems no reason why it should not be bound. He, at least, should be held estopped. By his acts he devotes the substituted goods to the' execution, instead of those he removes. But in this case there was a confusion of goods, produced by the wrongful act of the plaintiffs. The defendant had a special property in the goods levied upon. He was the legal owner, for the purpose of preservation and sale. Although the- plaintiffs were the general owners, their title was subordinate. They may properly be regarded, therefore, as having charge of the property of the defendant. They confounded it with their own, so that it could not be distinguished, and when called upon to designate it they refused. They can not complain if their own was taken. (Hart v. Ten Eyck, 2 John. Ch. 62, 108.)
    3. The defendant was, however, as matter of law, held liable for goods taken, which were purchased after the return day of the executions, upon the ground that they could not have been subject to a levy. But the question whether or not any such goods were taken was left to the jury as a question of fact upon the testimony of John' Both alone. The instruction of the court regarding his credibility was unexceptionable. The jury found against him, and properly so. Besides, he refused to designate the property he claims to have been bought after October 24, and he puts his right upon the simple and distinct ground that the executions had been paid, and is estopped now from asserting any other. (Dunlop v. Patterson, 5 Cow. 243, 246; Dows v. Morewood, 10 Barb. 183; Wendell v. Van Rensselaer, 1 John. Ch. 344; Smith v. Hill, 22 Barb. 656.)
   Mullin, J.

The jury having found a verdict for the defendant, they must be deemed to have found the following facts as established by the evidence.

1. That the defendant levied on the goods in the plaintiffs’ store on the 24th August, 1857, by virtue of the several, executions then in his hands, of which levy thé plaintiffs had notice, and that such levy was endorsed on the executions on the same day.

2, That the acts done by the defendant in making the levy were as follows: On the 24th of August he went to the plaintiffs’ store, and into the rooms where the goods of the plaintiffs’ were; saw them and exhibited to one of the plaintiffs the executions, and told him that he had levied on the said goods by virtue thereof.

3. That when the arrangement was entered into, that the defendant should take the check and notes in full of the executions, it was understood that the levy should continue in force, and that the inducement to such arrangement was to release the goods of Nelson Both from the levy made by the sheriff of Oneida county; and that such check and notes were not taken in payment of said executions.

4. That John Both refused to point out to the defendants deputy the goods purchased by him after the levy and before the 24th October; and that the defendant, having no inventory, could not distinguish the goods levied on from the new goods purchased and put into the store.

5. That no goods were purchased after the 24th October which were taken by the defendant.

The only legal questions presented by the record for our consideration are:

1; Whether the acts of the defendant constitute a valid levy on the property of the plaintiffs.

2. Whether the charge to the jury that they might regard the levy of the 24th August as continued and covering the goods purchased subsequent thereto, and during the life of the executions, was erroneous.

3. Whether the court erred in charging the jury, that if they believed John Both had knowingly testified falsely in reference to any fact, he was not entitled to be believed in reference to any other fact testified to by him.

(1.) Was there a valid levy? The acts necessary to constitute a valid levy on personal property ought not at this day to be in doubt. The question has been so often before the courts, and the rules laid down at a very early day have been so uniformly adhered to, that there would seem to be no room for controversy or misunderstanding on the subject.

To constitute a valid levy, according to the court, the officer must enter on the premises where the goods are, and take possession of them, if that be practicable; if not, then he must openly and unequivocally assert his title to them by virtue of his executions. (Haggerty v. Wilber, 16 John. 287; Beekman v. Lansing, 3 Wend. 446; Westervelt v. Pinckney, 14 id. 123; Green v. Burke, 23 id. 490; Camp v. Chamberlain, 5 Den. 198; Barker v. Binninger, 14 N. Y. 270.) It is proper, but not necessary, that the sheriff should make an inventory of the property.

It is not essential to the validity of the levy that he take/ actual possession of the goods, or that he remove them from the custody of the debtor, (Barker v. Binninger, cited supra; Ray v. Harcourt, 19 Wend. 495; Van Wyck v. Pine, 2 Hill, 666.)

Indeed, the test of a valid levy is whether enough has been done to subject the officer to an action of trespass, but for the protection of the execution. (See 3 Wend. 446; 23 Wend, and 5 Den. 198, cited supra.)

In this case the defendant went to the plaintiffs’ store, saw the goods, asserted his right to them by virtue of his levy, in the hearing of one of the plaintiffs, and subsequently the fact that a levy had been made was endorsed on the- executions. This brings the case precisely within the cases cited. The defendant did all that is required of an officer to do to perfect a lien on the debtor’s goods. In Copley v. Rose (2 Coms. 115), it was held by this court that the defendants saying that he had levied on the property of the plaintiff, showing the execution by virtue of which he acted, and insisting on the levy, was sufficient evidence that the defendant had exercised such dominion over the property as would make him a trespasser. By whatever standard we test the acts of the defendants, it seems to me that enough was done to constitute a valid levy on the goods.

(2.) As to the levy on the goods purchased and put into the store between the 24th of August and the 26th October. The learned judge told the jury that they might regard the levy of the 24th August as continued, and covering the goods purchased subsequent to the levy and during the life of the executions; such goods being in the same place, of the same general description as those levied upon, and being purchased to supply the place of goods sold by the debtor after the levy or making additions to the stock. The first blanch of this instruction is not very clear, but taking the whole proposition together it would seem that the learned judge intended to say to the jury that inasmuch as the plaintiffs had sold part of the goods which had been levied upon, and other goods of the same general description had been purchased and put in the places from which the other goods had been taken, such substituted goods were liable on the execution, the plaintiffs' neglecting, after request, to designate the goods on which the levy was made. The substituted goods became liable because the plaintiffs, having voluntarily mingled goods not liable to be sold with those that were liable, they could not maintain an action against the officer for selling such substituted goods. To permit an action to be maintained under such circumstances would be a fraud upon both the officer and the party whose process he holds. (Hart v. Ten Eyck, 2 Johns. Ch. R. 62, 108; Frost v. Willard, 9 Barb. 440.)

The charge, if intended, as I have no doubt it was, to convey the idea suggested was right. But if there was room for misapprehension as to the meaning of the judge, it was the duty of counsel to call for such qualification or explanation as would relieve the minds of the jury from any doubt in regard to it.

(3.) As to the charge that if the jury believed that John Roth had knowingly sworn falsely on the trial, he was not entitled to be believed in reference to any fact testified to by him, The learned justice had reference, in this branch of his charge, to certain evidence which had been given on the trial, a brief statement of which is necessary to a cor-rest understanding of the clause under consideration. Roth had sworn that he did not see the defendant at his store on the day of the levy; that the defendant did not show him the executions, nor claim to have levied; that on the evening of the levy there was no endorsement of the levy-on the back of the executions, nor of the time they were received; that the sheriff accepted the check and notes in full of the executions, and did not claim to retain his levy; that he did not advise with Carr at the sale as to the price to be paid for goods. He denied that he said anything to Moore, a witness on the part of the defendant, about going away and not testifying; or that he had made him an offer of clothes, or any thing else, if he would do so; or that he had employed one Perry to see the witness Moore. In relation to all these matters, together with several others, the witúess was contradicted by at least one, and, as to some of them, by two witnesses. And as to employing Perry to see Moore, he admitted it, in the course of his examination. It was to these contradictions the learned judge referred when he told the jury that if they found he had sworn knowingly false he was not entitled to belief in relation to any fact sworn to by him. Most, if not all, the matters as to' which the witness was contradicted were material to the issues then being tried, and as to them deliberate false swearing was perjury. The charge, therefore, was that if the jury believed that John Roth committed wilful and corrupt perjury on that trial he was not entitled to credit as to any fact sworn to by him. It is not claimed that as to many of these material facts he was cotroborated as to all matters resting on his own oath. The jury were required to ascertain the amount of-credit to which the witness was entitled; and it was the province of the judge to give them such rules as would aid them in arriving at a correct conclusion on that subject. - The extent of credit to which the witness was entitled was submitted to the jury, whose province it was to pass upon it.

The case was properly disposed of and the judgment should therefore be affirmed.

Selden, J.

The facts testified to by the sheriff were such as would,have justified the jury in finding'that a levy was ' made upon the goods. He says: “ I went to the plaintiffs’ store, found James C. Both there; he was up stairs; I looked the goods over, up stairs and down. Very soon John Both came in; I showed him the executions; he said I need not levy them for they would be promptly paid; I asked him if he could pay them then; he said he could not; I told him I could hold the levy but would give him a little- time to pay.” The last remark of the sheriff, made in answer to the request not to levy, was equivalent to saying “I levy on the goods, but will not enforce the levy by an immediate sale;” and must have been so understood by the parties. The goods being present, and within the power of the sheriff, these circumstances constituted such an exercise of dominion over them as amounted to a levy, at least as against the defendants in the execution. (Green v. Burke, 23 Wend. 490; Baker v. Binninger, 4 Kern. 270.) The judge, therefore, properly refused to instruct the jury that the facts testified to were not sufficient to constitute a valid levy. The instruction asked for could only have been given in case there was no evidence to justify the jury in finding a levy.

The next question arises on the exception to that part of the charge in which the judge instructed the jury that if there was a sufficient levy made on the 24th of August, and the executions were not satisfied, they might regard the levy as continued and covering the goods purchased subsequent to the levy and during the life of the executions. If a levy upon the goods purchased after the 24th of August, and prior to the return day of the executions, was necessary to justify the sale of the goods by the sheriff after the return day, I should be disposed to regard the exception as well taken. I am at a lo.ss to discover upon what principle a levy upon goods which the defendant possessed at the time of the levy, can ,operate, constructively, as a levy upon goods subsequently acquired by the defendant, which were never seen by, or within the power of, the levying officer, during the life of the executions. But, I am of the opinion that no actual levy was necessary to justify the defendant in seizing and selling the goods, after the retui^p day of the executions; As against the defendant in the judgments, the lien of the executions attached to all the goods held by such defendant, within the jurisdiction of the sheriff during the life of the executions, without a levy. At common law, the writ of fieri facias bound the goods of the debtor from the time when the writ was tested, which often preceded by a whole vacation the , time of its delivery to the sheriff. (Skin. 257; 7 T. R. 23, note (b.); Ray v. Birdseye, 5 Den. 624-5; Hotchkiss v. McVickar, 12 John. 406.) This effect given to the writ by relation, often operated very unjustly, especially as against bona fide purchasers; and to prevent that evil it Was declared, by the statute of frauds, (29 Car. 2, ch. 3, § 16,) that goods should be bound only from the time when the writ should be delivered to the sheriff to be executed. (1 Saund. 219 e., note i.) That statute was early re-enacted in this State (1 B. L. 501, § 6); and, by the revised statutes of 1830, the protection of bona fide purchasers was further extended to the time of actual levy.' (2 B. S. 365, §§ 13, 17.) These provisions are continued in force, and are applicable to executions against property under the code of procedure. (Code, §§ 286, 289, 291.) The goods-of the defendant in an execution, therefore, as against him, are “ bound from the time of the delivery of the execution to the sheriff to be executed (2 R. S. 365, § 13); and the reason upon which this rule is founded must extend the lien to all goods acquired by the defendant, within the jurisdiction of the sheriff, during the life of the execution. (Ray v. Birdseye, 5 Den. 619.) This.lien is created by law for the benefit and security of the plaintiff, and cannot be defeated by any act of the defendant short of a sale to a bona fide purchaser; and, in my opinion, it is not lost by the neglect of the sheriff to levy upon or to take the goods into his. custody during the life of the execution, but may be afterwards enforced by the sheriff, without such prior -levy. There is nothing inconsistent with this position in the case of Hotchkiss v. McVickar (supra); and if there be, that case cannot be reconciled with the later decision in Lambert v. Paulding (19 John. 311.) In this case a sloop had been removed by the defendant in an execution frdm the city and county of New York to the county of Westchester, after the delivery of the execution to the sheriff of New York, and before any levy. The next day after the removal, the sheriff of Westchester levied upon the sloop, by virtue of an execution in favor of another plaintiff against the same defendant; and having afterwards sold her, he was ordered, on motion made in behalf of the plaintiffs in the first execution,' to pay the proceeds of the sale to them—such proceeds being less than the amount of their execution. In deciding that case, the court say: “ The delivery of th e fieri facias to the sheriff of the city and county of New York bound the goods of the defendant then in his bailiwick, and the plaintiffs in that execution cannot be deprived of the lien on the sloop, which was then lying in New York; by the act of the defendant in removing the vessel into another county. He would be liable to an action at the suit of the sheriff for so removing the property.”* • From this it will be seen,, that by the delivery of an execution to a sheriff, without" actual levy, he acquires a special property in the goods-of the defendant sufficient to sustain an action against the general owner for their removal. That special property the law creates, not for the benefit of the sheriff, but for the benefit of the plaintiff in 'the execution; and the- object for which it is enacted will not allow it to b.e lost by the sheriff’s negligence. As the lien could be enforced only through the action of the sheriff, he had, I think, a right, by virtue of it, as against the defendant, to seize and sell after the expiration of the execution any property upon which such lien may have attached, although no previous actual levy had been made. The death of the defendant after the issuing of an execution and before a levy" does not prevent the sheriff from seizing and selling the goods of the defendant after his death, “for by the execution awarded the goods are bound.” (Parkes v. Mosse, Cro. Eliz. 181.) If the goods are bound after the death of the defendant, and after removal from the county without levy (Lambert v. Paulding, supra), they must be equally bound after the return day of the writ. The spirit- of the rule which declares execution to be the life of the law (Bacon’s Abr. Execution, A.), and which creates the lien without a levy, requires the continuance of such lien after the return day, so long as the rights of purchasers, or of other creditors, do not intervene. It is the duty of the defendant to satisfy the execution as well after the return day as before, and no wrong can be done to him by continuing the lien which has once attached Upon his goods, until he makes such satisfaction.

But whether the foregoing views are correct or not, the charge upon the point in question may be sustained on the ground that there was a confusion of goods, produced by the acts of the plaintiffs, which rendered it difficult, if not impossible, for the sheriff to distinguish between those levied upon and those which had been subsequently introduced. The plaintiffs refused to separate them, and upon well-established principles, the sheriff, under such circumstances, was-justified in taking the whole. (Hart v. Ten Eyck, 2 John. Ch. 62, 108; Popham, 38, pl. 2; 2 Kent’s Com. 364.) This ground of defence was not presented by the charge', so far as it is set forth, but as the unquestionable facts would have justified a positive instruction to the jury that the defendant was justified in taking the goods held by the plaintiffs during the life of the execution, the error of the charge, if there was any error, was wholly immaterial.

The only remaining question is presented by the exception to the charge as to the credibility of one of the witnesses. . Upon that subject the charge was that the jury were the judges of the credibility of the witnesses, and if they believed John Eoth had knowingly testified falsely in reference to any fact, he was not entitled to be believed in reference to any other fact testified to by him. To the last part of this charge there was. an exception. If this instruction were to be understood as forbidding the jury to give credit to any statements of the witness, although they might be satisfied of the truthfulness of some part of them, I should be inclined to doubt its correctness, although instructions going, as I understand them, to that extent, have sometimes been sustained. (Dunlop v. Patterson, 5 Cow. 248; The State v. Sim, 1 Dev. 508; Conrad v. Williams, 6 Hill, 447.) The object of all testimony is to establish the truth, and however corrupt the instrument of evidence may be, I am not aware of any legal rule which forbids a jury to give credit to such evidence (when the law allows it to be submitted to their consideration), so far as they may believe it to be truthful. I understand this question to have been settled by this court in the case of Dunn v. The People, lately decided, in favor of the right of the jury to determine whether any and what credit should be given to a witness under such circumstances. The charge on this subject, however, taken altogether, presents the question as fairly to the jury as the plaintiffs had any right to demand. If the witness had committed perjury in Ms testimqny, he was certainly not “ entitled to be believed” upon any doubtful question, and the instruction on tMs subject should be construed in connection with the previous expression, that “the jury were the judges of the credibility of the witnesses.” Thus construed, the language excepted to must be regarded as the expression of the strong, and certainly very rational, opinion of the judge that the witness was utterly unworthy of credit, but still leaving the question of Ms credibility to the jury. In tMs way only can the different expressions of the- charge be reconciled.

The judgment of the supreme court should be affirmed.

All the other judges concurring, judgment affirmed.


source: Caselaw Access Project

author: Hogeboom, J.

license: Public Domain

text:
    Ossian D. Ashley v. Gilbert N. Marshall, Impleaded with Solomon Steckel.
    Where no objection was made to the defendant’s answer on account of its setting up a counterclaim arising since the commencement of the action; nor to the defendant’s proof offered in support of it, that it related to matters arising after suit brought; nor was the point raised by exception ■ to the report of the referee: Held, that the plaintiff was not in a situation to avail himself of the objection on appeal. ■
    The plaintiff procured an injunction to be issued forbidding the sale, removal, or further interference with the furniture, &e., in a hotel by the defendant. The defendant, in his answer, claimed title to the property, under a mortgage executed by one S., and alleged that he had taken possession of the property, by virtue thereof, but was prevented from removing and disposing of the same by the service of the injunction, whereby he had lost his debt against S., and had sustained damages to the amount thereof; for which amount he claimed judgment, with interest and costs. It was found by the referee that the plaintiff, availing himself of the injunction, had possessed himself of, and sold at auction, certain property belonging to S., upon which the defendant’s mortgage was a lien: Held, that although the defendant had not averred the fact of a sale of the property in his answer, the defense of a counterclaim, if admissible under the pleadings, in point of time, was sufficiently set forth in the answer, and established by the evidence, to justify its allowance by the referee.
    It is not a ground of exception to the report of a referee that the referee has not found certain facts; especially where he was not requested to find them, and has not refused to do so.

      Appeal from a judgment of the Supreme Court affirming a judgment entered on the report of a referee.

    The action was commenced by service of a summons on the, defendant, Marshall, 26th May, 1856f The defendant, Steckel, was not served and did not appear. The pleadings were amended during the trial. The following is an abstract thereof as so amended: The complaint alleges that the plaintiff was and is the owner of certain articles of furniture, specifically described, of the value of $1,200. That they composed the furniture of a hotel called the Jefferson County House. That plaintiff was and is lessee of said premises, and had the right to continue the business of tavern keeping therein for five years; and that the lease, furniture, and good-will of the business were worth $1,000 and upwards. That the plaintiff, for a short time, had permitted the defendant, Steckel, to use said furniture,, but without giving him any right to retain, or have, or acquire any vested interest therein. That the defendant, Marshall, pretended to have obtained or acquired some right in the premises and furniture, and had sent men and broken and entered the hotel, -placed men to keep and guard the furniture, driven the servants of the plaintiff therefrom, nailed up the doors, and advertised the furniture for sale, and thereby broken up the business and destroyed the goodwill of said hotel, damaged the value of the plaintiff’s lease and compelled him to surrender the same, by which acts a large portion of such furniture was carried away and stolen from said premises, and alleging damage to the plaintiff by such-acts, in the amount,of $1,000. The complaint prayed for damages' for the trespass as above in $1,000, and an injunction preventing the defendant from selling, removing or interfering with the furniture. It prayed, also, for judgment against the defendant, Marshall, - declaring Marshall’s title void, and for a surrender of the premises and furniture, with damages for his interference, damages to the business, and damages to the price, sale and value of the furniture' and for general relief. The answer of the defendant, Marshall, sets up -that on 13th November, 1855, the defendant, Steckel, was indebted to him in $555.23, falling due in October, November and December, 1855. That on that day Steckel, for securing said sum, executed a chattel mortgage to Marshall of various' articles of furniture in the Jefferson County House, some of which he believed to be those described in the complaint, with the usual provision authorizing him to take possession and sell in case of default; and that said mortgage was filed on the 14th November, 1855. That at that time Steckel was lawful owner of the property described in the mortgage. That he made default, whereby the defendant acquired a right to take possession of such property, and to sell the same. That pursuant to such right the defendant had taken possession thereof, and was about to remove and dispose of the same for the purpose of realizing his debt, but was prevented by the plaintiff's injunction, whereby he had lost his debt, and suffered damage to the amount of his claim against Steckel thus secured by mortgage. The defendant then generally denied the other allegations of the complaint, and demanded judgment of dismissal, and for $555.23 damages caused by said injunction, and interest and costs. This cause was referred to Hon. A. Conkling to hear and determine all the issues therein. On the 15th March, 1858, the said referee made his report in favor of the defendant, Marshall, awarding judgment in his favor for $131.28, with costs, to which report the plaintiff duly excepted. The leading facts of the case are as follows:
    In the autumn of the year 1853, the plaintiff in this action purchased of one Thomas Cramer a lease of certain premises in the city of Hew York, known as the “Jefferson House,” with the furniture therein, and placed one Doolittle, the father and agent of the plaintiff, in possession thereof. Doolittle occupied it as a tavern until May, 1855, when, without the knowledge or approbation of the plaintiff, he permitted the defendant, Steckel, to take possession and use the premises as a tavern, for the purpose of enabling him to earn money sufficient to pay a debt then owing from him to Doolittle. While Steckel was so in possession, he purchased additional articles of furniture and executed a mortgage upon the furniture, then upon the premises, to the defendant Marshall, for the purpose of securing a debt due from him to Marshall. The mortgage debt having matured, and Steckel having absconded, .Marshall, about the first of May, 1856, undertook to foreclose his mortgage, and for that purpore'went upon the premises and nailed up the doors of the rooms in which the furniture had been placed,e and advertised it for sale. The plaintiff thereupon commenced this action, for the relief before-mentioned, and also to restrain, by injunction,' the further «interference of Marshall with the premises and furniture, and claiming damages for the trespasses already committed. Two days after the service of this injunction, (May 24th, 1856,) Marshall took the furniture excepted in the injunction, to wit:, one carpet, one sofa, four chairs, and one small table, and carried it away. He was told by the plaintiff’s agent, at the time he so took away the furniture, to take away everything that belonged to Steckel. ' The plaintiff afterwards, and about the middle of July following, sold the furniture by auction. The defendant Marshall, without seeking to dissolve the injunction, answered, setting forth his claim against Steckel, consisting of three promissory notes and an open account, amounting, in all, to the sum of $555.23; the execution of the mortgage by Steckel to secure the payment of this claim; averring the validity of the mortgage, and claiming judgment against the plaintiff for the amount of his claim against Steckel, with interest, on the ground that the plaintiff, by suing out the injunction, had prevented him from collecting it out of the furniture in question. The referee found that most of the furniture in the house belonged to the plaintiff, and that he was the lessee of the premises for a term then. unexpired; that Steckel had mortgaged all the furniture in the house to Marshall; that Marshall went to the hotel for the purpose of taking possession of the furniture therein, and with a strong hand nailed up the doors of the rooms containing it, and caused it to be advertised for sale; that a few days afterwards the plaintiff, availing himself of the injunction order granted him in this action to restrain the defendant Marshall from further intermeddlipg with said furniture, proceeded to take possession and subsequently to sell the same by auction; that Steckel, while in possession of the premises, had bought and placed in the house furniture which cost him $208.31, which belonged to him at the time of the execution of the mortgage; that there is no evidence of the real value of the ,007 property so bought by Steckel at the time the ’plaintiff,took possession of it; that its value can only be determined by arbitrary hypothesis. He, however, supposes it to have lost one-third of its value by use, and, finds that ‘to be a reasonable estimate; and deducting that third, finds its value to- be the remaining two-thirds, viz., $138.87; that there is no satisfactory evidence that the plaintiff sustained any pecuniary “ loss or damage” from the interruption of the business of the hotel caused by Marshall’s interference with the furniture; and that there is no evidence by which “ such loss or damage,” if any, can, be estimated. The referee concludes: lf Upon these facts I am of opinion, in point of law, * * * that damages to the amount of *$25 ought to be awarded to the plaintiff against the defendant Marshall for his forcible and unlawful intrusion into the hotel. That the above-mentioned gum of $138.87, with interest from the first day of June, 1856, being $17.41, ought to be awarded to the defendantMarshall against the plaintiff as damages on account of the conversion by the-plaintiff of the defendant Marshall’s share of the furniture.” He thereupon directs judgment against the plaintiff for the sum of $131.28, with costs. * * * Judgment was thereupon entered up against the plaintiff for $318.17 dam* ages and costs. From this judgment the plaintiff appealed to the general term. The judgment having been affirmed—* but without costs of the appeal—by the general term, the plaintiff appealed to" this court. The case was submitted on printed points by

      J. T. Williams, for plaintiff (appellant.)

      Abram Wakeman, for defendant (respondent.)
   Hogeboom, J.

The plaintiff relies principally upon three grounds to reverse the judgment of the 'court below: 1. That the answer lays no foundation for the judgment; 2. That the conclusion of law does not follow, and is not supported by the facts; 3. That Marshall’s testimony was improperly admitted.

1. The form of action, though somewhat anomalous, appears'to be in effect a special action on the case to recover damages for a forcible and unlawful-entry by the defendant upon the plaintiff’s premises resulting in serious injury to the plaintiff’s lease, business and furniture, and also to obtain an injunction forbidding any sale, removal, or further interference with the furniture and personal property in the hotel. Upon the complaint in the action, and prior to its service upon the defendant, the plaintiff obtained the injunction therein prayed for, which was subsequently served upon the defendant—.probably in connection with the complaint.

The defendant’s answer, though somewhat informal, claims title to the property under the Steokel mortgage, and alleges that the defendant'took possession of it by virtue thereof, and was about to remove and dispose of the same, but was prevented from doing'so by the service of the ipjunction, whereby the defendant lost his debt against Steckel and sustained damages to the amount thereof; for which amount he claims judgment, with interest and costs.

Strictly speaking, the act of the plaintiff in procuring and serving the injunction would, ordinarily, be an act at or after the commencement of the action, and therefore one the damages for which' could not be set up as a counterclaim in a pleading which is presumed to state the claims of the parties as existing at the time of bringing the suit; but as the act-of the plaintiff related to the very property which was the subject of the action, and materially affected the defendant’s rights and defense therein, I do not see why it could not have been set up ip a subsequent or supplemental answer, and have thus been rendered effectual to the defendant. In the condition in which the case is presented to us, I do not regard this as material. There does not appear to have been any objection made to the defendant’s answer on account of its setting up a counterclaim arising since the commencement of the .action; nor to the defendant’s proof offered in support of it, that it related to matters arising after suit brought. And in the fifteen specific exceptions which the plaintiff makes to the referee’s report, there is not one which covers the objection now taken. Moreover, the case states that in the progress of the hearing the pleadings were amended by consent, and as the matter of such amendment is not shown, we may, perhaps, presume that it embraced this very point. It may be added, that as the injunction bears date on the 25th day of May, 1856, and the action was commenced on the day following, and the time of service of the injunction is not shown, it is just possible that the injunction was served prior to the service of the summons; and if so, it would let in without amendment or supplement the counterclaim on which the defendant relies. For these reasons, I think the plaintiff is not in a situation to avail himself of this point.

The defense, if admissible under the pleadings, in point of time, was, I think, sufficiently set forth in' the answer, and established by the evidence to justify its allowance by the referee. The plaintiff had improperly deprived the defendant of so much of the property as was credited to him in the referee’s report. The seizure of it by the plaintiff as his own against the will of the defendant, was a conversion. Its subsequent sale by the plaintiff, whatever light it might throw upon his motives and intent, and upon the price and value of the property, was not essential to create a cause of action in the defendant. Although the defendant, therefore, has not in his answer averred the fact of a sale, nor set up in very distinct terms a specific counterclaim for the value of the property, he has distinctly alleged .that the plaintiff deprived him of its possession and caused its entire loss to him, and that he claims reimbursement therefor to the amount of his debt against Steckel. I think the plaintiff must fail on this ground of reversal.

2. The second proposition on which the plaintiff relies is, that the conclusion of' law does not follow, and is not supported by the facts. This proposition is a very general one, and as it is not apparently sustained by an examination of the referee’s report, which seems very properly to base its conclusions of law on the facts recited and found, it will be necessary to look further into the plaintiff’s brief to see the precise point intended to be raised.

It is said that the referee does not find that the furniture purchased by Steckel was included in the mortgage to Marshall, or passed to him under it1, or that it was taken, sold, or in any manner interfered with, by the plaintiff. ' I think the contrary of all this is fairly inferrible from the referee’s report; and if it is not, that the point is not available to the plaintiff here. It is a question of fact which cannot reach this court. It is not the case of a finding wholly unsupported by evidence; nor is the point presented in any available form by way of exception to the referee’s report. Several of the plaintiff’s exceptions to the referee’s report are to his not finding certaih facts. This is not a ground of exception, especially as he was not requested to find them, and has not refused to do so.

It is said that the referee has committed ah error in law, because he has determined the value of the defendant’s property at the time of its conversion by the plaintiff, by “arbitrary hypothesis.” This part of the report must be read and expounded in connection with the case and with the other facts found by the referee. . The value of the property purchased by Steckel does appear by the evidence, and is specifically stated by the referee. It is further proved to have been in use, and to have been more or less impaired by wear and tear. The precise amount of the deterioration is not shownj but it was legitimate for the referee to estimate it under the evidence. He did so by deducting one-third from its valtie, which he says he considers, under all the circumstances, a reasonable estimate, and assesses the value accordingly. This, notwithstanding the language used by the referee, is not a case where there is no evidence tending to show the real value of the property at the time of the conversion, nor a determination of its value by arbitrary hypothesis.

It is suggested that the referee committed a further error in allowing for a conversion of the property after suit brought, and interest upon the value of the property from a date pl'ior to the actual conversion. It is said there was no conversion otherwise than by the sale of the property or the service of the injunction; that these were both subsequent to the commencement of the suit, and subsequent to the time from which interest is allowed. This point has been sufficiently discussed in what has been heretofore said, except as to the allowance of interest. As to this, it is sufficient to say that the date fixed by the referee is sustained by the evidence, and is sa probable as any other specific day which could be fixed; and there is no evidence in the case on which it could be said that it is erroneous.

3. Again, it is said that the referee erred in admitting the testimony of Marshall. The testimony here referred to consists of the declarations of Doolittle, the father' and agent of the plaintiff, tending to show title tó the furniture in Doolittle- himself. Aside from the fact that there is some color for their admissibility on the ground that Doolittle himself swears, in unqualified terms, that he was the agent of the. plaintiff in regard to the furniture, I think the objection may well be over-ruled, for the reason that the testimony did not, by- possibility, prejudice the plaintiff. The referee has found, in express terms, that he did not rely'in any degree on these declarations of Doolittie. He states, amoUg other facts found by him, “ that af the commencement of this action, most of the furniture mentioned in the complaint, and therein stated to be in the hotel mentioned therein,-belonged to the plaintiff,” and he concludes: ‘.‘Upon these facts I am of opinion, in point of law: 1. Thát the mortgage from- Steckel to the defendant, Marshall, was ineffectual with regard to so much of the furniture as belonged to the plaintiff, notwithstanding Marshall had been induced to trust Steckel by the false assurances given by one Lucius Doolittle, (the father of the plaintiff, and his agent, to negotiate a sale of the furniture and of the plaintiff’s unexpired term in the hotel,) that the furniture had belonged to him, Doolittle, and by him had been sold to Steckel.”

After such an explicit statement by the referee, I think it impossible to say, in the language of the cases, that “the evidence had any bearing upon the issue, and could possibly have had an influence upon the verdict.” It is only in such cases that a new trial should be granted for the admission of improper evidence. (Murray v. Smith, 1 Duer, 412; Marquand v. Webb, 16 Johns. 90; Osgood v. Manhattan Company, 3 Cow. 618; Worral v. Parmelee, 1 Comst. 519; Shorter v. The People, 2 Comst. 193.)

4. It only remains to notice two or three minor points made by the plaintiff. It is said the referee made a mistake of $10 in footing Up the value of Steckel’s furniture, making it $208.31 instead of $198.31, and that, therefore, the judgment must be reversed. As we have not before us the prices-which the referee allowed,' we cannot say that this mistake has actually occurred, nor if it had, that it is remediable here. And if it be so, the remedy would be to deduct-two-thirds of $10 from the amount which the referee allowed, (which was two-thirds of $208.31,) instead of sending the case back for a new trial.

The same remark applies to the suggestion that Marshall carried away four chairs for which the referee has made no deduction. It is hardly worth while, in the ultimate forum for the settlement of grave questions of law, to present so trivial and by no means apparent an error of fact. ' It is not clear that the error has occurred.

It is said that the referee erred in awarding costs against the plaintiff. If the action was, as the supreme court decides, a common law action, he had no alternative. If it was, as the plaintiff claims, an equity action, he had the discretion to do so; and that. discretion has not been abused. ‘ If the supreme court erred in not awarding the costs of the appeal against the plaintiff, that is an error of which the plaintiff cannot complain.

I think the judgment of the supreme court should be affirmed with costs-.

All the judges concurring, judgment affirmed.


author: Denio, Ch. J. Johnson, J. Selden, J.

text:
    Amos Terpening, Executor, &c., of Almira Terpening, deceased, v. John Skinner, and others, Executors, &c., of John Skinner, deceased.
    A testator, by Ms will, executed in 1822, after giving certain real and personal property to Ms wife, for life, with remainder over, of ethe real property to his son J.; and of the personal to his daughters, directed as follows: “I further order that J. S. shall have an equal share in my lands in T. with my several daughters, instead of those mentioned in C. Secondly. I give and bequeath unto my son J. all that my certain farm situate in 0., except what is heretofore conveyed. *. * * * * I also order that the said J. shall pay to my several daughters, as hereinafter mentioned, that is to say: to M. H., or her heirs, the sum of $20, * * and unto the heirs of H. M., late deceased, the sum of $20, at, &e., which sum I order to be put at interest until said heirs arrive at lawful age; unto 0. B- the sum of $40, to be paid at the times aforesaid, and which I order my executors to dispose of as they shall see best for the heirs of C. B.; unto-M. H. the sum of $20, to be paid as aforesaid, and unto A. H. the sum of $20, &c. Thirdly. I give and bequeath unto my several daughters, M. H., the heirs of H. M., C. B., M. H. and A. H. all my lands situate in V.; also all my right, to one other piece of land situated in C., Sec., except that I order J. S. an equal share with my daughters in the aforesaid lands, except those in V., which is to be divided solely among my daughters; and I order my executors to sell the above lands as in their judgment they may see fit, and the money arising from the sale to be paid to my heirs aforesaid, except the heirs of H. M.; to be placed at interest until they arrive at lawful age. I also order the money arising from the share of G. B. to be retained by my executors, and by them applied for the benefit of the heirs of C. B., as they may think best. Fourthly. I give and bequeath unto my daughter C. B. one two year old heifer. Fifthly. I order all my personal property, not heretofore disposed of, divided equally amongst my heirs, after paying all my debts and funeral charges.”
    The testator left five children, and the'children of a deceased daughter, H. M., him surviving. His daughter, 0. B;, had one child living, at the date of the will, who died soon afterwards, and another, A. T., was born before the death of the testator. The husband of G. B. was insane at the time the will was made. In an action by A. T. against the executors of the testator to compel the payment to her of one-sixth of the estate of the testator,

      Held, that the object of the testator was to secure the fund arising from the share of C. B. from the possession and control of her insane husband. and not to give the title to it to the grand-child, A. T. That hy the will no estate in the land was vested in A. T., but it vested in the testator’s daughter, C. B. That the title remained in her, and could he in no one else until she was divested, either by a sale and conveyance hy herself, or a sale by the executors under the power contained in the will.
    This action was commenced in 1857, by Amos Terpening, .and Almira Terpening, Ms wife, against John SMnner (since deceased), who was the execiitor of the will of Gershom SMnner, the father of said John and the grandfather of the said Almira. The object of the action was to compel John Sldnner, as the executor of the will of his father, and as ■ trustee under the will, to account for a legacy of $40, and an interest in certain lands, or in their proceeds, which the plaintiff, Almira, claimed were bequeathed and devised to her by said will.
    The only question which the case presents depends upon the construction of the will; the plaintiffs claiming that the gifts in question were made to the said Almira Terpening; and the defendants, that her mother, Caty Bloodgood, was the legatee and devisee.
    The testator, by Ms will, which was made in May, 1822, after giving certam real and personal property to Ms wife, for life, with remainder over, of the real property to his son John, and of the personal to Ms daughters, directs as follows: “I further order that Isaac SMnner shall have an equal share in my lands in the town of Verona, with my several daughters, instead of those mentioned in Columbia.
    “ Secondly. I give and bequeath unto my son John Skinner all that my certain farm, situated in the town of Columbia aforesaid, except what is heretofore conveyed. I also give and bequeath unto my said son John Skinner one wagon, one sleigh, one plow, one harrow, and one horse;, and I order that the said John SMnner shall pay to my several daughters, as hereinafter mentioned, that is to say: to Margaret Hess, or her heirs, the sum of twenty dollars, one-half in one year and six months, and the remaining half in two years and six months after my decease;' arid unto the heirs of Hannah Myers, late deceased, the sum of twenty dollars, at the times last above mentioned, which sum I order put at interest by my executors until said heirs arrive at lawful age; unto Caty Bloodgood, the sum of forty dollars, to be paid at the times aforesaid, and which I order my executors to dispose of as they shall see best for the heirs of said Caty Bloodgood; unto Mary Hess the sum of twenty dollars, to be paid as aforesaid, and unto Amy Hess the sum of twenty dollars, at the time, above mentioned.
    Thirdly. I give and bequeath unto my several daughters, Margaret Hess, the heirs of Hannah Myers, Caty Bloodgood, Mary Hess, Amy Hess, all my lands situated in the town of Verona, in the county of Oneida; also all my right to one other piece of land situated in the town of Columbia, whereon there is a sawmill, being about sixteen acres, adjoining lands of William Gray and Conrad Hess, except that I order Isaac Skinner an equal share with my daughters in the aforesaid lands, except those in the town of Verona, which is to be divided solely amongst my daughters, and I order my executors to sell the above lands as in their judgment they may see fit, and the money arising from the sale to be paid to my heirs aforesaid, except the heirs of Hannah Myers, to be placed at interest until they arrive at lawful age. I also order the money arising from the share of Caty Bloodgood to be retained by my executors, and by them applied for the benefit of the heirs of said Caty BloodgOod, as they may think best.
    “ Fourthly, I give and bequeath unto my daughter, Caty Bloodgood, one two-year old heifer.
    “ Fifthly, I order all my. personal property not heretofore disposed of divided equally amongst my heirs, after paying all my debts and funeral charges.”
    John Skinner and John Jones were named as executors of the will, but the former only received letters testamentary. The testator died in February, 1824, aged 74 years, leaving a widow and one son, John (named as executor), and four daughters, Margaret Hess, Catherine Bloodgood (called Caty in the will), Amy Hess, and Mary Hess, his surviving children. Another daughter, Hannah Myers, had died before the date of the will. At the time of his death, the testator was the owner of some personal property, and of an undivided half of thirty-one acres of land, situated in the town of Columbia, on which there wa§ a saw-mill, and of 135 acres in Verona, being /the parcels mentioned in the will, and his son John was the owner of the other undivided half of both parcels. The son after the death of his father took possession of both parcels, and continued in possession of that in Columbia until the commencement of this action, and of that in Verona until June 1857, when he sold the whole parcel for $3,360. He had, about the year Í828, purchased the interest of all his sisters in the lands in Verona, and in December of that year received from his sister Caty a quit-claim deed of all her interest, therein. He paid to her the legacy of $40, and always acted upon the belief that he was bound to account to her, and not to her children during her life, for her portion under the will. She never requested him to sell the Colum bia lands, or asked him to account, or objected to his ad ministration of the estate. The plaintiffs, before the com mencement of this action, requested the executor to sell the Columbia lands, and to apply the share-belonging, as they claimed, to Almira Terpening for her benefit, and to account for her share of the proceeds ef the Verona lands, and the $40 legacy. The executor denied that Almira had any claim under the will, unless her mother had given her some right.
    Caty Bloodgood, after her marriage, remained hr her father’s family until his death, and was always on terms of affection with him. He was in feeble health for two or three years before his death, and she was the only one of his daughters who remained with, and attended him, after his strength failed. She had a child, which was living at the date of the will, but died in the summer of 1823. Another child; Almira (the original plaintiff in this-action), was seven or eight months old at the time of the death of the testator.- The husband of Caty Bloodgood' was insane at the time when the will was executed, and committed suicide, in July 1823. He was a carpenter, 'and depended upon his labor for income while living, and left property to the amount of about |600 only. Mrs. Bloodgood, after the death of ]ier first husband, married Jeremiah Barringer, and was living at the time of the commencement of this action, but had no issue, living, except the plaintiff, Almira Terpening.
    Upon these facts the referee, before whom the cause was tried, decided that Almira Terpening was never entitled to any portion of the estate of Gershom Skinner under his will; to which decision the plaintiffs excepted. Judgment was entered dismissing the plaintiffs’ complaint, and upon appeal to the general term of the supreme court that judgment was affirmed. (See 30 Barb. 373, S. C.) The plaintiffs thereupon brought the present appeal. The case was submitted here, upon the briefs of counsel, by

      Robert Earl, for the appellants.

      Roscoe Conkling, for the respondents.
   Denio, Ch. J.

The main question arising under this very illiterate will is,” whether the testator’s granddaughter, Almira Bloodgood, afterwards Terpening, whose executor now prosecutes this action, took any estate or interest under the will. In respect to the legacy of $40, it is given in plain and explicit terms to the testator’s daughter, Caty Bloodgood, the mother of Almira; one-half of it to lie paid to the legatee in one year and six months, and the other, half in two years and six months from the testator’s decease, oby the defendant, who is a devisee of valuable interests by the will. But there is this qualification in the gift to Caty, if it be a qualification, namely: “And I- order my, executors to dispose of the $40 as they shall see best for the heirs of Caty Bloodgood.” The will also devises to his four daughters, including Caty Bloodgood, whose names are given, and to the heirs of another daughter who had died, a farm in Verona, Oneida county,-of which the testator was seized of an undivided half part, and to the same persons, and to Isaac Skinner a small piece of land in Columbia, Herkimer county, in which he was seized of a half share; the land to be sold by the executors, who are to pay the proceeds to the devisees, “the money arising from the share of Caty Bloodgood to be retained by my executors, and by' them applied for the benefit of the heirs of the said Caty Bloodgood as they may think best.” The defendant was the sole acting executor. The daughter Caty had an incompetent husband at the date of will. She had one child living at the date of the will, who died before the testator, and Almira, whose executor is the present claimant, was born after the making of the will and before the testator’s death. It is difficult to apply technical rules to such a disposition. If the property is considered as given to or for the benefit of Caty, with a remainder in her heirs, or her children as a class, the remainder is a vested cue in the child living at the testator’s death, subject to open and take in other children who may come into existence before the death of the devisee, for life. If this is the construction, the plaintiff, if he fully represent Caty, would have no present right to call the defendant to account, for Caty being yet living, the remainder has not vested in possession, though it has in interest; But I think this is not the effect of the gift: if even the language were to that effect, the rule in Shelley’s Case, which, had not been abolished when this will was. made, would apply and give the fee to the first named devisee. The trust in the executors, as to the proceeds would not enure, for they did not take an estate in the land or in the principal of the legacy, but only a power over the proceeds. The plaintiff can therefore prevail only on the assumption that the devise was direct to and for the immediate benefit of the heirs, as a class, passing the daughter by, and giving her no estate or interest. To do this we must treat the formal bequest and devise to her as without effect or meaning, and hold that she is mentioned only as the stock upon which the term heirs is predicated. There are several objections to this, besides the improbability of the testator making provision for persons yet to come into existence, to the exclusion of a living object of his bounty. Direct provisions should not be disregarded, if any probable construction would give them a meaning. It is not said that the money or the proceeds of the land are to be paid to the heirs, but only in the case of the legacy, that the executors shall dispose of it as they shall see best for the heirs, &c., and as to the proceeds of the land, it is to be by them applied for the benefit of the heirs, &o, My opinion, upon the best reflection I can bestow on the case, is, that it was intended by the testator, and that the construction is that the gift should be held direct to the testator’s daughter Caty, but that to avoid its being imprudently spent, the executors should have a control over it, and should exercise that control in such a manner as might be most for the benefit of Caty’s family. She then had one child and might have more,- and they were to be brought up and educated. If the money was paid directly into her hands, it might be spent and she left without ability to support her children. To prevent this the executors were clothed with a discretion as to the application of the money. It is unnecessary to say what the effect of this power , would be, but it is sufficient to defeat this action that a direct gift to the children was not intended. If the executors judged it best for the children that Mrs. Bloodgood should, have the money, I think they would be justified in paying it to her, as it seems they have done. The word heirs is certainly not used in a legal sense. I think it was used in a mere sense denoting Caty’s children or her family.

I am for affirming the judgment of the supreme court.

Johnson, J.

It is difficult, from the terms of the will; to ascertain the precise intention of the testator, in respect to the devise and bequest to his daughter Caty Bloodgood. But I am unable to see how, in any view of the case, this granddaughter of the testator can have acquired any vested right or interest, either in the legacy of $40, or in the lands devised or the proceeds thereof. Nothing is given to her in terms; and, from the entire scope and terms of the will, I am entirely satisfied that she was only indirectly and incidentally the object of the testator’s bounty. Both the bequest and the devise are directly to the testator’s daughter Caty Bloodgood. The terms are, “unto Caty Blood good the sum of $40, to be paid at the times aforesaid”— which were, one-half in one year and a-half, and the othei half in two years and a-half. It is then added, “and which I order my executors to dispose of as they shall see best for the heirs of said Caty Bloodgood.” It is plain, from other parts of the instrument, that it was not designed by the testator that this sum should be invested for the children of Caty, as in the case of the children of his deceased daughter Hannah Myers. In regard to that bequest, the directions to invest until the children should come to the age of twenty-one, are explicit. The one in question was t® be disposed of by the executors, when paid, in a manner .most beneficial, in their judgment, to the heirs or children of Caty Bloodgood. The legal right and title were nevertheless in Mrs. Bloodgood, as it was given to her, and to no one else, but, to be disbursed by the executors, in such manner as to secure "the. greatest benefit to her children. This might well be accomplished by paying it directly to Mrs. Bloodgood. An ample reason is seen for this precaution, in the evidence respecting the habits and mental condition of the husband of Caty. The object undoubtedly was to secure the fund from the possession and control of the husband, and not to. give the title to it to the grandchild. And so in regard to the devise of the land; it is to his several daughters, naming them all, except Hannah Myers, whose share is given directly to her heirs. The lands in Yerona were to be divided equally between the daughters, and those in the town of Columbia equally between them and Isaac Skinner. And the moneys arising from the sale were to be divided in the same way, and paid to his heirs aforesaid. The share belonging to the heirs of Hannah Myers was to be invested or placed at ‘interest until they should arrive at lawful age. The moneys arising fr'om the share of Mrs. Bloodgood, in case of sale, were not to be put at interest or paid over to her, or her heirs, but to be retained by the executors and by them applied for the benefit of the heirs of “ Caty Bloodgood, as they may think best.” Certainly, under this will, no estate in the land vested in this granddaughter, but it vested in the daughter of the "testator. And the title most clearly remained in her, and could be in no one else until she was divested, either by a sale and conveyance by herself, or a sale by the executors under the power conferred by the will. This power, I think, the executors could not be compelled to exercise. Unless, in their judgment, it was fit and proper that the lands should be sold, no duty to sell devolved upon them. They did not see fit to sell it, and the title to that portion of Mrs. Bloodgpod’s share, remaining unsold, is still in her. Her title to the other portion she conveyed herself, as she had the clear right to do, and received the proceeds. There having been no sale by the executor, of the lands devised under the will, he had no funds in his hands from that source; for which he could be called to account. I am of the opinion, therefore, that the case was properly disposed of in the court below, and that the judgment should be affirmed.

Selden, J.

The construction given to the will in this case, by the referee and the supreme court, was correct, and the judgment appealed from should be affirmed, for the reasons given by Mr. Justice Bacon in that court.

All the judges concurring, judgment affirmed.