text:
    Silas C. Herring v. Ely Hoppock.
    'When, by the express terms of a contract of sale, the title is not to vest in the purchaser until the price is paid, the title of the vendor is not divested until payment made, notwithstanding time for payment is given by the contract, and .there .is a delivery of the property when .the contract is made.

      A creditor of the purchaser who levies an execution against him on the property during the term of credit and sells it out and out, is liable to the vendor for its value, if the purchaser fails to pay within the term of eredit.given by the contract, when he sells with notice of the facts.
    A surety in an indemnity bond exacted by and executed to the sheriff, to protect him against the consequences of such a levy and sale, and to induce him to sell notwithstanding the claim, is also liable, without evidence of any other interference in respect to the levy or sale.
    (Before Oakley, Oh. J., Boswobth and Blossom, J.J.)"
    Jan. 16; 26, 1854.
    This action was brought to recover the value of an iron safe, delivered by the plaintiff to Brooks & Hopkins under the following agreement:
    “New York, Feb. 6th, 1852.
    “Received from Silas C. Herring, one Patent Salamander Safe, No. 4910, delivered to us this day, under a bargain for the sale thereof, and for which we have given our note at six months for two hundred and thirty-five dollars.
    “ And it is expressly understood that said Herring neither parts with nor we acquire any title to said safe until said note is fully paid. And in case of default in the payment thereof at maturity, said Herring is hereby authorized to enter our premises and take and remove said safe, and collect all reasonable charges for the use of the same.
    (Signed) Brooks & Hopkins, 117 Liberty St.”
    On the 26th of June, 1852, the Sheriff of New York levied two executions upon the safe, which executions were on judgments recovered against Brooks & Hopkins, one of which was in favor of Hoppock, and the other in favor of Thomas Jackson. The deputy who levied the executions was notified that the safe belonged to the plaintiff, and thereupon required a bond of indemnity from each execution creditor, which was given July 6,1852. Hoppock signed the bond in his own case as principal, and Jackson’s as surety. Each bond was the same in form. The condition of the latter was as follows :
    "Whereas the above bounden Thomas Jackson did obtain judgment in the Supreme Court of the city and county of New York, against James P. Brooks and Charles E. Hopkins, for the sum of five hundred and eighteen dollars, whereupon execution has been issued, directed and delivered to the said Thomas Carnley, as such sheriff, requiring him, out of the personal property of the said judgment debtors, to satisfy the judgment aforesaid. And whereas certain personal property that appears to belong to the said James P. Brooks and Charles E. Hopkins, is claimed by some other person or persons. How, therefore, the condition of the above obligation is such, that if the above bounden Thomas Jackson shall well and truly save, keep and bear harmless, and indemnify the said Thomas Carnley, and all and every person and persons aiding and assisting him in the premises, of and from all harm, let, trouble, damage, liability, costs,- expenses, suits, actions, judgments, special proceedings and executions that shall or may at anytime arise, come, accrue, happen, or be brought against him, them, or any of them, as well for the levying and making sale under and by virtue of such execution of all or any personal property, which he or they shall or may judge to belong to the said judgment debtor, as well as in entering any shop, store, building, or other premises, for the taking of any such personal property, then this obligation to be void, else to remain in full force and virtue.
    Thomas Jackson, [l. s.]
    Ely. Hoppook. [l. s.]
    E. A. Eobertson, [l. s.]
    Sealed and delivered in the presence of
    L. D. Beardsley.
    Witness to. Ely Hoppock and E. A. Eobertson,
    Wm. H. Bogert.
    ■ The Sheriff subsequently sold the property levied upon, first selling property other than the safe, which produced enough to satisfy Hoppoek’s execution, and the expenses of the sale, and subsequently sold the safe. The sale was before the note of Brooks & Hopkins to the plaintiff matured. After it matured, ■the proceeds of all the sales were appropriated by the deputy, first to pay Hoppock’s execution in full, and the balance on Jackson’s. The sale was a sale of the safe out and out, and not .merely of the interest of Brooks & Hopkins in it. The note given by Brooks & Hopkins was not paid.
    . The judge who tried the cause, directed the jury to find a verdict for the defendant. From the judgment rendered oh the verdict found in accordance with such direction, the plain tiff appealed. ' The other facts in the ease appear in the opinion ©f the Court.

      S. P. Nash, for the plaintiff,
    made and argued the following points.
    I. The plaintiff’s title was clearly established. The instrument under which Brooks.& Hopkins had possession of the safe, is one which has been declared by this Court not to divest Mr. Herring’s property in his safes. (Herring v. Willard, 2 Sand. 418.)
    The case cited was a contest between the plaintiff and a bond fide purchaser. His title is still stronger as against an- execution creditor. (Herring v. Willard, and cases there cited.)
    II. The sheriff was a trespasser in levying upon and selling . the safe, and all who aided or abetted were also trespassers. (1 Chit. Pl. 91, 2 ; Root v. Chandler, 10 Wend. 110; Davis v. Newkirk, 5 Denio, 92.)
    HI. Being notified of plaintiff’s title to the property levied on, the sheriff demanded indemnity. The defendant, by his indemnity bond, directed the sheriff to sell, regardless bf plaintiff’s rights. The sheriff sold, and the proceeds of the sale were applied on the defendant’s and the other execution. Defendant, therefore, was a trespasser as well as the officer. (See cases under preceding point.)
    IY. The point taken by the defendant, that .the sheriff’s authority under the execution against Brooks & Hopkins ceased as, soon as goods enough had been sold to satisfy that execution, might be tenable, perhaps, if the execution was a justification to the sheriff. But the execution only authorized the sheriff to levy on and sell the goods of Brooks and Hopkins ; the defendant directed him to go on and sell the goods of plaintiff. Whether in committing this trespass he sold more goods than he need to have sold, is a matter of no moment. He .swears he sold the safe under Hoppock’s execution and Jackson’s. The act was a trespass, and defendant directly authorized ■it.
    But a sale made by the sheriff under several executions does •not per se terminate his authority under his executions as fast as property is sold sufficient to satisfy them successively. It remains with him to apply the moneys. The executions remain •in force in his hands, and until he returns them he may go on and sell. He determines the priorities when he applies the money. (See Peck v. Tiffany, 2 Comst. 451; People v. Schuyler, 4 Id. 173.)
    But even if the sale had been made under Jackson’s execution exclusively, the fact that defendant joined in Jackson’s bond, that the bonds were executed together, and bore the ■same date, .was sufficient to charge the defendant as a trespasser, and to carry the cause to the jury. (Newkirk v. Davis, 5 Denio, 92.)
    V. The judgment should be reversed, and a new trial granted.

      C. W. Sandford, for the defendant,
    made and argued the following points.
    1. There was no evidence to connect the defendant with the -sale of the safe. His judgment was paid in full from the sale of the groceries some days prior to the sale of the safe.
    H. The 'defendant gave no directions to the sheriff respecting •the. safe. The plaintiff should have proceeded against the .sheriff, or should have replevied his property.
    HI. The bonds of indemnity form no ground of action by the plaintiff.
   By the Court. Bosworth, J.

The jury, by direction of the judge, before whom this action was tried,found a verdict for the defendant. The plaintiff excepted to the decision, and appealed from the judgment entered on the verdict. If there was evidence in support of the cause of action stated in the complaint, which should have been submitted to the jury, the decision at the trial was erroneous.

The plaintiff was the owner of the safe, and the title would remain in him until payment was made, or payment, as a condition of vesting the title in Brooks & Hopkins, had been waived. (Herring v. Willard, 2 Sand. C. R. 410.)

On the 26th June, 1852, or about that time, the Sheriff of New York levied upon the safe and other property the two executions against Brooks & Hopkins, one of which was on a judgment in favor of Hoppock, and the other was on a judgment in favor of Thomas Jackson. Both executions were' issued by the same attorney, and both were simultaneously delivered to the sheriff, viz. June 26,1852, at 25 minutes before 3 o’clock, P. M.

Attachments had been issued in. those actions, and levied upon the safe and other property before the judgments were recorded. The attachment first issued was in Hoppock’s suit, but whether the two attachments were simultaneously delivered to the sheriff , does not affirmatively appear. It is perhaps proper to presume that Hoppock’s attachment was first delivered, as the money realized was insufficient to satisfy both judgments, and instead of being applied pro rata upon the two, Hoppock’s was paid in full, and only the surplus applied upon Jackson’s.

Soon after the executions were levied, the deputy was notified that the safe belonged to Herring: the agreement between Herring and Brooks and Hopkins was shown to the deputy, and left with him for two' or three days, on his stating that he wanted to show it to, some of the parties. On the 6th of July, 1852, the sheriff took from Hoppock and Jackson, severally, bonds of indemnity, and Hoppock signed the bond as surety, which was given by Jackson; each bond recites “ that certain personal property, that appears to belong to the said James P. Brooks and Charles R. Hopkins, is claimed by some other person or persons,” and Jackson’s bond is conditioned that .“ he shall indemnify and save harmless the sheriff, as well for the levying and making sale under and by virtue of such execution, of all or any personal property, as he or they shall or may judge to belong to the-said judgment debtor.”

The sheriff, before selling the safe, sold other property which produced enough to pay Hoppock’s execution in full, and the expenses of the sale, and leave a small surplus. He subsequently sold the safe ;.it had not been removed until after the sale of the property first sold had been made. The deputy testified that he sold the safe on both executions. Ho actual appropriation of the proceeds of the property levied upon was made by the deputy until after the safe was sold. On the 10th of August, 1852, the day after the time given to Brooks and Hopkins to pay for the safe had expired, the deputy paidHoppock’s execution to his attorney, and paid the balance of the proceeds to Jackson’s attorney, the same person being the attorney in both suits. On the evidence before us, we must presume that the deputy sold the safe out and out, and not subject to the right or claim of the plaintiff to the same. On this evidence a verdict was ordered in favor of the defendant.

A sale by the sheriff, of the safe, out and out, was tortious as against the plaintiff, and is sufficient to charge him as a trespasser, at the suit of the plaintiff.

All who direct, request, or advise an act to be done which is wrongful, are themselves wrong-doers, and responsible for all damages. (1 Ch. Pl., ed. of 1837, p. 91.)

To render one man liable for the torts another it is not necessary "that the two should be actually co-operating at the time the wrong is done; it is enough that the act of the individual sought to be charged, ordinarily and naturally produced the acts of the other. The intent with which an act is done, is by no means the test of the liability of a party to an action of trespass. If the act caused the particular injury, whether a trespass was intended or not, the person doing the act is liable for the consequences of the injury. (Guille v. Swan, 19 J. R. 381; Wall v. Osborn, 12 Wend. 39.)

When a sheriff requires a bond of indemnity against the claims of persons claiming to be owners of property levied upon, before he will proceed to sell it, and a bond is given to induce him to sell, all who sign the bond, in effect request him to sell it, and agree to take upon themselves the consequences of the sale. The act of giving the bond not only naturally produces the wrongful sale, but it is the main, if not the sole cause of its being made. The language of the sureties to the bond is, proceed and sell, and if the plaintiff in the execution does not pay all damages, costs, and expenses to which you may be subjected, at the suit of the person to whom the property rightfully belongs, we will pay them. This request and contract of the sureties in judgment of law caused the wrong. This request and promise were required by the sheriff, as a condition to doing the wrong, the damages resulting from which, this action is brought to recover. Davis v. Newkirk, 5 Denio, 92, decides the precise point, that the signing of an indemnity bond as surety, is sufficient evidence to carry- the case to a jury, in an action against the surety, for a sale by a sheriff thus indemnified. We do not concur in the views presented to show that the decision in that case was erroneous. (See Root v. Chandler, 10 Wend. 110; People v. Schuyler, 4 Coms. 173.)

We think it was error to direct a verdict in favor of the defendants, on the evidence which had been given.

The judgment appealed from must be reversed, and a new trial ordered', with costs to abide the event.


source: Caselaw Access Project

author: By the Court. Slosson, J.

license: Public Domain

text:
    William McCleary v. Edward Kent and Richard Dougherty.
    The defendants, who had contracted to build a house, had employed a blacksmith, at a stipulated price, to make and finish a grating on the front area. The opening for-the intended grating was left without a covering or fence, and the pláintiff fell through it and was seriously injured.

      Reid, that as it did not appear that the blacksmith was bound to guard and protect the opening except while engaged on his own work, the negligence to which the accident was owing was justly imputable to the defendants and their servant. Whether a principal contractor is liable for the negligence of a subcontractor is an undetermined question.
    Judgment affirmed with costs.
    (Before Dubk, Campbell, and Slosson, J.J.)
    Feb. 6, 1854.
    This was an action to recover damages for a personal injury sustained by the plaintiff in consequence of the negligence of the defendants in leaving a portion of an area, in front of a building which they had contracted to erect and finish, open and unguarded. The allegations in the complaint were denied by the answer.
    The cause, upon the issues raised by the‘pleadings, was tried before the Chief Justice and a jury in May, 1853, and came now before the court upon the following bill of exceptions.
    Upon the trial of the issue, the counsel for the plaintiff, to maintain the issue on his part, called as a witness

      F. P. Vidal, who, being sworn, testified as follows:—I am a City Surveyor; I surveyed south-east corner of West Broadway and Duane street (witness shown diagram); the area extends five feet five inches into West Broadway, twenty-four feet one inch and a half front on West Broadway; on Duane street the area is three feet nine inches to the walk; the area is covered with a grating to the stairs leading to the lower story; the stairs are four or five feet; the depth is eight feet three inches below the top of the sidewalk; the coping above the sidewalk is four inches. .

      Sarah, Lozier, being called as a witness on behalf of the plaintiff, and duly sworn, testified as follows:—I own the premises south-east corner of West Broadway and Duane street; have owned them several years; I know defendants; I had a building put on the premises last summer by Kent & Dougherty, the defendants ; they contracted to build it and finish it complete ; same buildings that are up now; same area and grat-. ings, contracted to finish and complete; the defendants-finished the building; it was delivered and finished; don’t recollect the time, it was about October.
    I don’t remember any one’s calling to see me about the work; the masons and carpenters had charge of the building; I don’t know who was to furnish the iron w'ork; I paid no one for any work except Kent & Dougherty, the contractors.
    Cross-examined.—Jasper Demarest is my son; he knows more about it; Mr. Cleary came into my room to inquire about the apartments the same evening, before the accident; my house is four houses off; he was in liquor when he came in to inquire about the rent; he wavered a little; I did not hear of the accident until morning; I" thought he was in liquor; I supposed he was in .liquor because he talked so unreasonably.

      M. H. Howell, being called as a witness on behalf of the plaintiff, and duly sworn, testified as follows:—I am a house-smith ; know defendants; did work on the building; the defendants employed me ; I furnished the grate over the area in front; it was last summer.
    Cross-examined.—'There was no written contract; the work was well done; I sent the grating and men to put it in; I was to receive §400 for putting it down; I do not recollect the width (the diagram is shown witness); the opening was two feet six inches wide, three feet six inches long; that is the diagram the building was erected from.

      John McDougal, being called as a witness on behalf of the plaintiff, and duly sworn, testified as follows:—I am a tailor; reside in West Broadway; I know McCleary; I know the building; I was with him at the time he fell into the opening, 17th September, a quarter before eight, P. M.; McCleary and me were going up West Broadway, going towards Canal street; we noticed a bill on the corner; went to see who had the letting of the building on the corner; after looking at the bill he turned to go up West Broadway, and stepped into the area hole, where the grating now is; he stood nearer the hole than I did; the first step he took he fell into the hole; we left his store, in Church street, below Chambers street, the last place before we came here; I worked for McCleary ; I stopped in West Broadway, at James Robinson’s; he left the shop at half-past seven o’clock; I had been in his company about three quarters of an hour before leaving the shop ; I did not see him going into any house to inquire the rent; he was as sober as I am this, minute; I saw nó light or protection of any kind; I did not know the hole Avas there until I saw McCleary fall in, and break his leg, and otherwise inj ure his body; the depth of the hole Avas from nine to ten feet; I carried him to my own house, 47 Thomas street; he remained from Friday till Thursday; thence home to Centre street, above Centre Market; he was confined about four or five months; his business was repairing and scouring old clothes; I had been in his employ about one year; he went out, through hotels mostly, and about the city, collecting work; out most of the time ; always went on foot.
    Cross-examined.—We drank a small glass of beer ; I worked before that at another place ; he attended to his business ; he took-a glass as well as another person; McCleary read the notice ; he mentioned who had the letting of the house; I can’t say who it was; it was somebody in Church street; he was in front of me when he fell in ; he did not go into a house 21 West Broadway.

      Dr. Gordon, being called as a witness on behalf-of the plaintiff, and duly sworn, testified as follows:—I am a physician; know plaintiff; was called on the night of the 17th September, at McDougal’s;' I found him in bed ; I found the thigh bone fractured about one hand from the hip joint, he had some slight abrasure of the skin, shoulders bruised; I have attended him ever since that occurred ; I set the leg; he was confined to bed for three months; for about a month after he went on a crutch; I believe, at present, it is as well as it ever can be; a cripple for life is the result of such an accident; my bill is $109 to present date ; he had no appearance of being in liquor; I saw him before ten o’clock of that night. I have been paid $18 on account. •

      Hugh Murray, being called as a witness on behalf of the plaintiff, and duly sworn, testified as follows :—I am a tailor; I have been in McCleary’s employ five years before September last, and afterwards I was employed by him, after the injury, to take charge of the shop; I received about $7 a week,-for about two months; the business was rather on the decline, because plaintiff could not go out to look for work; $11 to $15 a week received only while I was there after the accident; before the accident the average was $4 a day.

      Oakley Bray, being called as a witness on -behalf of the plaintiff, and duly sworn, testified as follows:—I am a policeman, 3rd Ward, was so in September, another officer, Peter Ottington, and myself were going up West Broadway, we were on the opposite side, saw a crowd, ran over, found McCleary down the area way, assisted him out by a ladder. A man .put him on his back and carried him home, he complained about his leg and face, he did not walk. I should think he was sober. There was a saw bench in the area. . I had observed the .hole before that night; I saw no precaution. There was no board or light to guard against the injury.; the open space was three to four feet long, and about the same in width, and eight feet deep. The other policeman is dead. I do not recollect a gas-light on the corner.
    Cross-examined.—I think from the actions and appearance of the man he was not in liquor.

      Cornelius Durrees, being called as a witness on behalf of the plaintiff, and duly sworn, testified as follows :—I saw the hole open a day or two previous, in the afternoon I noticed the bill, and went up to look at it. In stepping away I was near stepping in. It was between three and four o’clock, P. H.

      James Downing, being called as a witness on behalf of the plaintiff, and duly sworn, testified as follows:—I am a car-man ; the day of the accident, I saw defendant Kent at the building, I told Kent it. was a dangerous hole. Kent said; if a man can’t see that, he had ought to fall in. I did not see the man that was injured.
    The counsel for defendants hereupon moved to dismiss the complaint in this action, on the ground, that inasmuch as it appeared from the evidence that the witness, Howell, subcontracted with defendants to furnish the grating or iron work, and did so furnish the said grating or iron work, the said Howell employing men under him to labor upon said work; that under the evidence, the said Howell, if any one, and not the defendants, should respond to the plaintiff in damages. The court denied the said motion of defendants’ counsel to dismiss the complaint, to which said decision of the court denying said motion the defendants’ counsel then and there duly excepted.

      Patrick Corcoran, being called and sworn as a witness on behalf of the defendants, testified as follows :—I am a laborer; I am in the employ of Kent and Dougherty, since last September ; knew the building in question; I' remained there till the policeman got done; every night we put up guards of scaffolding boards. I was a laborer.

      Barclay Cummings, being called and sworn as a witness on behalf of the defendants, testified as follows:—I was at work in the building spoken of until the mason work was done; the iron grating was being put up when we left; we put up guards every night about six o’clock; we left the blacksmith when we went away; the carpenters were also there. Kent and Dougherty, with all the men, went up town after they got through.
    Upon • being cross-examined by the plaintiff’s counsel, the witness testified,-1 was not at the building at the time; did not see the hole.

      J. Van Voorhies, being. called and sworn as a witness on behalf of the defendants, testified as follows:—I know- the building; saw the person that fell; it was in September; saw him coming along the fence in West Broadway; he stepped up to read a bill; I thought the man was in liquor before he fell; I was standing in my store door, across the street, 125 feet off; it was dusk, not dark; I went over and saw them take the man out; he hobbled away between two men; the width of the side walk was about eighteen feet; the height of the coping is about six inches.

      John N. Lyon, being called and sworn as a witness on behalf of the defendants, testified as follows :—I have seen McCieary before. I was standing on the opposite corner. I did not think he was sober..

      David Stevens, being called and sworn as a witness on behalf of the defendants, testified as follows:—I am a baker.. I know the building. I saw defendants while erecting the building. I lived across the way. I observed them putting on the plank every night while Kent and Dougherty were there; it covered the whole area. I recollect the grating was guarded some time.
    Cross-examined.—I can’t swear as to the night before the accident.

      Joseph Demarest, being called and sworn as a witness on behalf of the defendants, testified as follows:—I am the son of Mrs. Lozier. She • and I contracted for the work with Kent and Dougherty. They contracted with Vanlieu for the carpenters. I am not acquainted with plaintiff’s habits. I saw that building often. Defendants were there, off and on, while the grating work was being put up, after the mason work was finished. I saw the man putting up guards every night, down to the time of the accident. I have • put them up myself.

      W. H. Howell, called hy the defendants:—Two or three hands were sent down to do the jobs. Don’t recollect their names. Was there occasionally. I was there in the middle of the day. The mason work was not finished. The hole was open while the men were at work.
    The defendants hereupon rested, and the testimony was closed. The court thereupon proceeded to charge the jury. The counsel for the defendants requested the court to charge the jury that, under the evidence in this case, the defendants were not liable to respond to the plaintiff in damages. The court refused so to charge. To which decision, the counsél for the defendants thereupon then and there duly excepted. The jury thereupon retired, and soon afterwards came into court and rendered a verdict for the plaintiff for $400. Upon which a judgment in his favor was duly entered.

      H. L. Clinton, for the defendants,
    in moving for a reversal of the judgment, and a new trial, insisted that—
    The court erred in not dismissing the plaintiff’s complaint. (Blake v. Ferris, 1 Selden, 48.)
    It appeared from the evidence of Howell (plaintiff’s witness), that he subcontracted with defendants to do the iron-work or grating.
    The erection of grating to protect the area was entirely under the control of Howell.
    The accident to plaintiff occurred in consequence of his leaving the area unprotected by grating.
    The principle adjudicated in Blake v. Ferris, and running through all the adjudged cases now recognised as authority, is that the party who has the selection of the men performing the work, through whose negligence damage is sustained, is alone responsible. (Pack v. Mayor, &c., of New York, recently decided in Court of Appeals.)

      E. Sandford, for the plaintiff,
    contended' that no error had been committed by the judge upon the trial,, and that the judgment ought to be affirmed with costs, and insisted that—•
    The defendants were in the exclusive possession of the premises, under a contract to deliver the buildings finished and complete in every particular, when the injury was sustained by plaintiff. The building was delivered finished in October, and the injury happened on 17th September.
    Howell, the blacksmith, was employed by defendants to put down the grating. There is no evidence that he had any charge or possession of the premises ; on the contrary, on the day of the accident defendant Kent was at the building, and his attention was called to the hole. He did not claim that he was not responsible for the condition of the premises.
    If the accident was occasioned by the negligence of the blacksmith, he was the agent and servant of defendants, and they are responsible. (Blake v. Ferris, 1 Selden, 49, and cases there cited.)
   By the Court. Slosson, J.

It is a mistake to suppose that this case is at all governed by the decision of the Court of Appeals in jBlaJee v. Ferris. Had the action been brought against Mrs. Lozier, the owner, instead of the defendants, the objection that has been relied on, would have applied, and would have been fatal; but the defendants had contracted to finish the whole building, and while engaged in the performance of their contract, had the exclusive possession and control; and that their contract embraced the front area, and the work there necessary to be done, is not denied. Although they employed a blacksmith at a stipulated price to make and finish the grating, it does not appear that it was not their duty to guard against accidents during his absence and that of his workmen, by covering or fencing the opening to the area, until it was properly grated. Their contract with the owner imposed upon them this duty, and it does not appear that they were released from it by their contract with the blacksmith. On the contrary, the case shows that it was considered by themselves to be their duty, and that they attempted to prove its performance. Hence, it is to- the negligence of the defendants themselves and of the servants whom they employed, that the accident from which the plaintiff has suffered must be imputed, and there is consequently nothing to take the case from the general rule of respondeat superior.

Even had it been proved that the blacksmith, as a sub-contractor, was bound to guard and protect the opening in the area until the completion of his stipulated work, we are by no means prepared to say that the defendants would not still be responsible for his negligence, as' that of their own agent or servant. We are not aware that it has yet been decided that he who has contracted to erect and complete an entire building may relieve himself from all liability for the negligent acts or omissions of those by whom the labor may be performed, by parcelling out the work to sub-contractors in distinct jobs, instead of performing it by laborers under his own direction and in his immediate employ. As at present advised, we do not think that the principle of the decision in Blake v. Ferris would require us to go to this extent, and, unless under the pressure of a paramount authority, it is not a decision that we should be willing to make. It is not necessary, however, that the question should now be determined.

All the exceptions taken on the trial are overruled, and the judgment upon the verdict is affirmed with costs.


author: By the Court.

text:
    John H. Bowie v. Augustus H. Brahe.
    A person who enters into the possession of land under a conveyance is presumed to claim title to no more than his deed embraces.
    The presumption may be repelled, but it can only be so by positive evidence of an adverse claim.
    A conveyance from the true owner during the possession of a person, who is shown to be a mere trespasser, is valid.
    "Where there is no dispute as to the facts, the question of adverse possession is a. question of law.
    Judgment for plaintiff affirmed with costs.
    (Before Duer, Campbell, and Slosson, J.J.)
    Feb. 9, 1854.

      Tms was an action by the plaintiff, claiming to be owner in fee, to recover the possession of a strip of land in the Fourth Ward of the city of Hew York, on the northerly side of Ferry street, two inches front and rear to four and a half inches in the centre, to the depth of fifty-four feet five inches, which the plaintiff claims to be part and parcel of the easterly side of his lot, number twenty-five (25) Ferry street, being the second lot easterly from Jacob street, and that he was entitled to possession of it, which he alleged to be wrongfully withheld by the defendant. v
    The defendant denies the plaintiff’s complaint and right of recovery, and avers title and rightful possession in himself, which is denied by the plaintiff.
    The action was tried upon the issues on the 15th day of December, 1852, at a regular trial term of this court, before Chief-Justice Oakley and a jury duly empannelled for that purpose.
    On the trial the following facts appeared.
    About the year 1804, Samuel Bradhurst by deed conveyed to Cornelius Hoffman a lot known as number five .(5) on a map of the Crupel Bush Swamp, fronting on Ferry street, being the second lot southeasterly from Jacob street, in the Fourth Ward of the city of Hew York, as laid down on said map, commencing twenty-five feet easterly of Jacob street and running easterly on Ferry street twenty-five (25) feet; being twenty-five (25) feet front and rear, and one hundred (100) feét deep, as appears by said map. Said lot by descent through the daughter of said Hoffman and wife of David Bryson, came to Margaret H. Bryson, and was in the possession of the family from about 1804 until the first day of May, 1852. On the last-mentioned day the said Margaret H. Bryson conveyed said lot known as number twenty-five (25) Ferry street, with others, to the plaintiff, describing it substantially as follows:— Beginning at a point on the northeasterly side of Ferry street, twenty-five (25) feet southeasterly from the northeasterly corner of Ferry street and Jacob street, running thence northeasterly along the southeasterly line of land now of James R. Smith, formerly of Jacob Lorillard, parallel with Jacob street sixty (60) feet, thence southeasterly parallel with Ferry street twenty-five (25) feet, thence southwesterly parallel with Jacob street sixty (60) feet to the northeasterly side of Ferry street, thence northwesterly along said northeasterly side’ of Ferry street twenty-five (25) feet to the place of beginning; and the plaintiff then entered upon the actual possession of the same, except as hereinafter mentioned.
    The defendant, on the 8th day of March, 1844, purchased lot number twenty-seven (27) adjoining the plaintiff’s lot, being the third lot from Jacob street, and described in the deed to him as follows:—Beginning at a point on the northerly side of Ferry street, distant fifty feet one inch (50,1) southeasterly from Jacob street, running thence northeasterly along land now or late of D. Bryson and J. Lorillard, one hundred and eighteen feet three inches (118,3), thence southwesterly twenty-five feet seven and a half inches (25,7^), along land now or late of Jacob Lorillard and David Bryson, thence southwesterly on a straight line to Ferry street to a point distant twenty-five feet and half an inch (25,0-1) southeasterly from the place of beginning, and thence northwesterly along Ferry street twenty-five feet and half an inch (25,01), to the place of beginning; be the said dimensions more or less. At the time of the purchase there was an old house on the lot, which had stood there over thirty years, which the defendant, soon after his purchase in April, 1844, tore down and removed, and erected on the same lot a four-story brick building, the westerly wall of which, as found by the verdict in the cause, encroached upon the easterly side of the first-described lot number twenty-five (25) Ferry street, one inch and seven eighths of an inch (1 §) from front to rear in a straight line; which building has since been owned and occupied by him.
    There was an old fence along the easterly side of plaintiif’s lot, which had stood so long that it was rotting; this fence, some little time previous to defendant’s building, had been taken partially down; and the defendant, in erecting the westerly wall of his own building, extended it Obeyond the line of the old fence, so as to encroach upon lot number twenty-five (25) Ferry street.
    The starting point from which the parties, by their deeds, must measure to find the locality of their lots, is • corner of Jacob and Ferry streets, and measuring from this corner, as the same was ascertained, it appeared by different measurements that the defendant’s building was bn the plaintiff’s lot, as described by the deeds and ascertained by the measurements, one and seven eighths of an inch (If).

      David McCarter, a witness called and sworn on the part of the plaintiff, testified among other things, as follows:—I knew Cornelius Hoffman sixty (60) years ago; he died in 1816, leaving one daughter named Margaret.

      Peter M. Bryson, another witness, called and sworn on the part of the plaintiff, testified as follows:—1‘ My father’s name was David Bryson. His first wife was Margaret Hoffman, daughter of Cornelius Hoffman. I, with my brother, C. H. Bryson, measured lot number twenty-five (25) Ferry street, in 1844, before defendant began building. I was there about the time he began building. He came over on our lot about two inches (2). I told the defendant at the time he began to break ground after a foot or two. I gave him formal notice for my father, as owner of number twenty-five (25), that he was encroaching, and if he proceeded, it was at his peril. Brahe said he must have twenty-five (25) feet, and if he could not get it on the east side he must have it on our side ; said somebody had encroached on him on the east side, and he must have twenty-five feet from somewhere. He went on notwithstanding, and built. I know of the deed given to the plaintiff in May last by Miss Bryson. After this conveyance, I conversed with Brahe on many occasions. Brahe admitted he had encroached, and said my father had notified him, and I had, and my brother had, and he replied to me as he had before, that he must have twenty-five feet (25), and as he could not get it on the east side, he took it off our side.
    The defendant insisted that the plaintiff could not, as a matter of law, recover, for the reason, among others, that the defendant had held adverse possession and occupied the premises in question eight (8) years and over, the plaintiff being a subsequent purchaser.
    The plaintiff maintained,
    First. That the Code requires all actions to be brought in the name of the party in interest.

      Second. That the defendant did not hold possession of the ground in question by any title adverse to that of the plaintiff’s grantors, nor did he claim so to hold it. Because,
    1st. Defendant’s deed did not include the ground claimed by the plaintiff.
    2d. Notice was given by and on behalf of David Bryson, to defendant at the time he built, that he was encroaching upon lot number twenty-five (25).
    3d. The defendant admitted at the time he commenced building, and also subsequent to the conveyance to the plaintiff, that he had thus encroached.
    4th. Defendant never claimed to possess said ground by virtue of any title.
    The question as to the effect, on the plaintiff’s right to recover in this action, of the defendant’s possession at the time of the conveyance to the plaintiff, was reserved by the justice, and the verdict as to this question was taken for the plaintiff, subject to the opinion of the court, but upon all other grounds the jury rendered an absolute verdict for the plaintiff, for one inch and seven eighths of an inch front and rear in a straight line.
    The motion for judgment upon the verdict was made before Mr. Justice Boswobth at-Special Term. He gave judgment for the plaintiff, and delivered the following opinion.
    Bosworth, J. The jury have found all the questions of fact in favor of the plaintiff, and he is entitled to a judgment on the verdict, unless the character of the plaintiff’s possession of the premises at the time his deed was executed was such as to render it invalid.
    The defendant’s deed, does not include the premises, nor did he ever claim that it did. He did not take nor hold possession under a claim of title.
    He wanted twenty-five feet in width, and as he could not obtain it where the deed located it, in consequence of an encroachment on his east line, he took enough to make the width by occupying a part of the land of the present plaintiff.
    Possession by a third person, of granted premises, does not render the grant by the true owner void, unless the person in possession claims title adverse to that of the grantor. (1 R. S. 739, § 147.)
    If a" person enter on lands without pretence of title, his possession will be deemed the possession of the true owner. (3 I. R. 269.)
    It is the claim of title that makes the possession of the holder of the land adverse to that of the grantor. (LaFrenebors v. Jackson. Ex.’r dem. 8 Cow. 703 (per Jonesoh.) ; 5 Cowen, 92.)
    Possession by a mere trespasser claiming no title, does not make a deed executed by the true owner during the continuance of such possession void.
    The possession of the defendant not being under a claim of title, the plaintiff must have judgment on the verdict.
    The defendant appealed from the judgment at Special Term, and upon this appeal the case was now heard.

      Radcliffe, for the appellant,
    insisted that the judgment ought to be reversed, and the complaint be dismissed, or a new trial be granted, upon the following grounds.
    I. Ejectment is a possessory action, and lies where the plain- . tiff’s right of entry exists. It is to recover, the possession wrongfully detained—not the seisin or freehold. (Lord Mansfield, in Atkyns v. Harde, 1 Burr, 114; Jackson v. Deifendorf 3 J. R. 269.) Brahe has been in the possession and occupancy of the premises, not only by sufferance and peaceably, but holding adversely, as against the world, for eight years; and he has at least acquired a possession and tenancy entitling him to notice. (Doe d. Kerby v. Carter, 1 R. & M. 237; Doe d. Cates v. Somerville, 6 B. & C. 126.) Bowie, being a subsequent purchaser (with full notice), cannot recover without first giving notice of his deed, or demanding possession. (Cates v. Somerville, and Kerby v. Carter, before cited; Hall v. Robinson, 2 Comstock, 293.)
    H. When this action was commenced, Bowie had no right of entry, title, or cause of action, as Brahe, at the date of Bowie’s deed, had • been, and was then, holding adversely. A deed executed by the true owner, while there is an adverse possession, is void as against such possessor, although it is as good as against the grantor. (Jackson v. Otis, 8 W. R. 440 ; Jackson v. Demarest, 9 J. R. 55 ; Cole v. Irvine, 6 W. R. 634; Livingston v. Peru Iron Co., 9 W. R. 511; Livingston v. Proseous, 2 H. R. 526 ; Bream v. Cooper, 5 Munf. R. 7.) Bowie is not permitted to say that Brahe did not claim adversely. In Livingstone v. Proseous, which is in point, it is not pretended that the possession should be under a proclaimed title ; it may be presumed as against a subsequent purchaser. The title of Brahe is adverse. There has been an actual occupancy, a possessio pedis, definite, positive, and notorious: and this constitutes an adverse possession, though there be no claim of title. (Hammond v. Warfield, 2 Har. & John. 151; 2 Mott & McCord’s R. 243; Forney v. Lenox, 8 Serg. & R. Rep. 392.)
    III. Bowie had a cause of action under his deed against Miss Bryson, his grantor, but not against Brahe ; and he can only maintain an action against her, Brahe holding adversely at the date of Bowie’s deed. (Jackson v. Otis, 8 W. R. 440 ; Livingstone v. the Peru Iron Co., 9 W. R,. 511; Cole v. Irvine, 6 H. R. 634; 2 H. R. 526.) The plaintiff cannot have two causes of action—one against either party for the same thing.
    IY. Miss Bryson, the grantor, and not Bowie, has the title, and is the only party who can sustain the action, if sustainable, against Brahe, Brahe continuing, as he has, to hold possession after, and notwithstanding Bowie’s deed. And a recovery by the grantor, in such case, would enure to the benefit of Bowie, the grantee. (Livingston v. Proseous, 2 H. R. 526.)
    Y. The statute and the law relating to this kind of action is not repealed or altered by the Code. (Code, § 455.) Bowie cannot recover under the statute. (2 R. S., 3d ed., 400, 401, &c.) Under this statute (2 R. S. 401, § 7) it is a requisite that the plaintiff should aver in his declaration that, on some day thereon to be specified, and- which shall be after his title accrued, he was possessed of the premises in question—and that the defendant afterwards, on some day to be stated, entered into such premises, and unlawfully withholds possession. These facts are neither averred nor proven, nor do any such facts exist. The action is a statutory one, and without merits, and Bowie should not recover, unless he brings himself within the statute.

      VI. The main ground upon which Bowie relies for a recovery, and upon which Hr. Justice Bosworth bases his opinion, is that Brahe, in taking possession in 1844, was a trespasser, claiming no title, and his possession, therefore, was the possession of the true owner.
    Bowie cannot recover on this ground, for the following reasons:
    1. If Brahe was originally a trespasser, Miss Bryson, the plaintiff’s grantor, had no right of action for the trespass, the statute of limitations has not only defeated that action, but cured the trespass; and Bowie must so look upon it. He cannot now take advantage of a wrong which .has been settled by an acquiescence between the original parties of eight or ten years. Ho matter how tortious the acts of Brahe, his possession, being certain and notorious, is good as against the- world. (Munshower v. Patton, 10 Serg. & R. Rep. 334.) 2. Miss Bryson, the grantor, at the time of the execution and delivery of her deed to Bowie, had no right or cause of action in trespass against Brahe ; and Bowie, by his deed, certainly took or acquired no more right or title than his grantor had. Bowie, therefore, can claim nothing by reason of Brahe’s alleged original trespass, or wrongful entry; he stands only in the light of an assignor under the Code, and is not entitled to the aid of that class of cases relied upon on the other side protecting the real owners and grantors against wrongful entries and possession without claim of title. Brahe must at least be considered as holding adversely, claiming title as against Bowie. 3. But suppose Bowie to stand in the light of a grantor or true owner in this action, the question then presents itself whether Brahe has held adversely claiming, title ? The answer is, 1. That he having erected his house upon the premises, and his long uninterrupted occupancy shows a stronger claim of title than a naked possession with a mere verbal claim of title; 2. That the claim of title must be presumed from the case, it being a question of fact for the jury; and if it had been disputed, would have been passed upon by them ; and besides, if the question now be looked into, it will be seen that the evidence, though one-sided, fails to show that Brahe claimed no title.
    VH. The theory, as before stated, on the part of Bowie, is, that at the time of the execution of his deed by Miss Bryson, she had an action of trespass or for wrongful detention against Brahe, and that by his deed he only took her right, title, and cause of action against Brahe, and now stands as the assignee claiming to be the party in interest under the Code prosecuting the action. It is well understood that a mere right of action for a wrong or tort is not assignable; and this action can only be sustained by Bowie upon his deed (which here is merely in the nature of a bill of sale or assignment), and a demand of possession thereunder before suit, as the action proceeds upon a wrong. (Hall v. Robinson, 2 Comstock, 293.) An assignment of a disputed title to land, or where the vendor is not in possession, is prohibited by the statute. (2 R. S. (1 ed.), 691, sections 5 and 6.)
    YIU. The jury found only the fact that Brahe had one and seven eighths of an inch off lot No. 25; no other question of fact was submitted, passed upon, or tried by the jury. The question as to Bowie’s right of recovery is solely a question of law, and the only one now to be considered. The verdict of the jury, and the question as reserved and presented by the case, concedes that Brahe held adversely claiming title, and it cannot be gainsaid in any way now attempted. The court will not look into evidence tending to prove such facts upon a case or bill of exceptions. (Jackson v. Jay, 9 J. R. 102; Clapp v. Bremaghan, 9 C. R.; Scheuben v. Jackson, 2 W. R. 14.) The question whether there was an adverse possession at the time of the execution of Bowie’s deed is a question of fact for the jury, and is not an interlocutory question to be decided by the court. (Stephens v. Dewing, 2 Aiken R. 112 ; Pray v. Pierce, 7 Mass. R. 383.) Whether or not a possession is adverse is to be determined by the jury, and not by the court. (Jackson v. Jay, 9 R. 112; Jackson v. Stephens, 13 J. R, 496; Gayetty v. Bethune, 14 Mass. R. 55; Jackson v. Porter, 1 Paine’s R. 466; McClung v. Ross, 5 Wheat. R. 124; Cummings v. Wyman, 10 Mass. R. 468.) The procuring of the evidence of witness Bryson in the case, is an attempt to .deprive Brahe of the benefit of the sole question, which was, as to the legal effect of Brahe’s adverse possession, reserved for the opinion of the court; the evidence should not be considered in the case.

      IX. If Bowie should finally have judgment, it cannot be carried out or executed; the sheriff could not give possession, Bowie having built the wall' of his house close up and against Brahe’s house, and the locus in quo / for this reason the defendant should have judgment.

      Delavan, for the plaintiff, was stopped by the Court.
   By the Court.

We can require no argument in support of this judgment.

When a person enters into the possession of lands under a deed it is a known presumption of law that his claim of title is limited to the premises described in his deed. This presumption is not "indeed jwris and dejurre. It may be repelled, but it can only be so by positive evidence that the person so entering claimed 'to be the owner of more than his deed embraced. There was not only no such evidence in this case, but it was clearly proved that the defendant, as to the strip of land now sought to be recovered, was a wilful trespasser.

It was not necessary that the question of adverse possession should have been submitted to the jury. There was no conflict of evidence, and where the facts are undisputed, adverse possession is purely a question of law. As such it was properly reserved and has been rightly determined.

As there was no adverse possession there is no pretence for saying that the deed from which the plaintiff derives his title was void when executed. In judgmenffof law the grantor was not out of possession.

The judgment is affirmed with costs.


author: By the Court. Duer, J.

text:
    John Bates, Daniel Bates, & Geo. Howell v. Edward B. James, Henry Bishop, & Wm. J. Boyd.
    A sale under an execution against one partner, not limited to his right and interest, but of the entire partnership property, is an abuse of the process, and renders all concerned in the sale, liable as trespassers.
    It is an open and doubtful question, whether in an action for the recovery of the property sold, or its value, the partner against whom the execution was issued, may be properly joined as a plaintiff.
    But if the objection to the joinder is not raised in the pleadings, nor taken on the trial, it will not be entertained by the Court at General Term.

      It seems, that an execution upon a judgment in the Marine Court of the city of New York, issued more than five years after the judgment was rendered, is, under the provisions of the Code, not merely irregular, but void.
    Judgment for plaintiffs affirmed, with costs.
    (Before Duek, Campbell, and Slosson, J.J.)
    Feb. 9, 1854.
    Appeal from a judgment at Special Term, in favor of the plaintiffs, for $389 18.
    The complaint charged that the defendants had wrongfully taken, carried away, and sold, a large number of tubs of butter belonging to the plaintiffs, of the value of three hundred dollars, and claimed judgment for five hundred dollars damages, with costs.
    The defendants, in their answer, denied the ownership of the plaintiffs, and justified under an execution issued out of the Marine Court of the city of Hew York, against the property of John Bates, one of the plaintiffs.
    The case was now heard upon the following bill of exceptions.
    “ This cause came on to be tried at the City Hall, in the city of Hew York, on the 16th day of June, 1853, at a regular trial term of this court, upon the issue joined upon the pleadings therein, before J. S. Bosworth, Esq., one of the judges thereof, and a j ury duly empannelled and sworn for that purpose; and the counsel for the said plaintiffs, to maintain and prove the said issue on their part, called John Helms, and who being duly sworn, testified that he knew the defendants, that.he was present at a sale of butter in Spruce street, the 15th day of December last, but didnot know the number of firkins sold, he purchased one firkin of about one hundred pounds at twenty-five and a half cents a pound, this firkin was good: Hr. Cary, one of the counsel for the plaintiffs, in behalf of the plaintiffs, forbid the sale, defendants James and Bishop were present, and Boyd as auctioneer sold the butter, such butter was selling at thirty-one cents a pound, about that time I priced some in market, and they asked me that .for it.
    “ On being cross-examined he said twenty-five and a half cents was all in his opinion the butter was worth. The remainder of the butter was about the same quality as far as I can judge as.that I bought, Hr. Cary bid off the remainder of the butter.
    “ The plaintiff then called Theodore Tobe and who, being duly sworn, testified that he was clerk for the plaintiffs in December, 1852, that the plaintiffs were in business together in the butter and cheese business, a man came to the plaintiffs’ store about the 7th of December last, and took away ten firkins of butter worth twenty-nine cents or- thirty-one cents a pound, I did not know the man or men who took it away.
    “ On being cross-examined he said, I saw the men take the butter, I looked through a window ten or twelve feet off, I could not hear what was said, I spoke of the market price of good butter, I did not examine this butter.
    “ The counsel for the plaintiff then called William Bates, and who being duly sworn, said he was about the plaintiffs’ store in December, 1852, was outside when the butter was taken, a eartman and one other man took it, believes there was eight or ten firkins, saw defendant Bishop at Ho. 12 Spruce street, and saw the same butter there marked J. & D. Bates, knew the tubs, they belonged to the plaintiffs, he had seen the same tubs in the plaintiffs’ store.
    “ On being cross-examined he said the style of the firm was J & D. Bates & Co., he saw butter taken by a eartman marked J. & D. Bates, cannot say the number of firkins.
    “ The counsel for the plaintiff, further to maintain their said issue, called Bishop, one of the defendants, as a witness at large in the cause. The counsel for the defendants objected generally and severally in behalf of the several defendants, that Bishop was not a competent witness to testify either generally or severally against the other defendants. The court overruled the objections and admitted the witness, to all of which the defendant, by his said counsel, duly excepted, and the witness testified that the 7th of December last, he took a quantity of butter from 57 Sixth Avenue ; the bill shown to me is correct, it is a bill of the butter sold—except one firkin sold to Mr. Helms—I sold the butter at Ho. 11 Spruce street, on the 15th of December, 1852 ; William T. Boyd, one of the defendants, sold the butter, as auctioneer, as stated in the bill; the bill of said butter is as follows:

      “ Hew York, 15th December, 1852, Mr. J. E. Cary, bought of J. W. Somerendyke, store 11 Spruce street.
    2 112 lbs. Butter, 21i cts. , $24.08
    3 61 66 22 66 ' 13.42
    4 55 tt 66 22 66 12 10
    5 [15] 176 in: lbs. 66 22 ■ 66 24.42
    6 [15] 125 110 tc 66 22 66 24.20
    7 [15] 124 109 66 66 22 66 23.98
    8 [14] 122 108 66 66 22 66 23.76
    9 [14] 122 108 66 66 22 66 23.76
    10 [14] 122 108 66 66 22 66 23.76
    $193.48
    Received Payment,
    J. W. SoMEKENDYKE, pi\ W. T. BOYD.
    “ The firkin bought by Mr. Helms is marked on the back of the bill: 1st tub, 114-13-101, at 25 Jc—$25.76.
    “ I saw James there at the time of the sale; the butter was taken and sold by the directions of the defendant James; he has indemnified me for my action in the matter. Counsel for the plaintiff asked whether the defendants James &Boyd were both present and acting at. the sale ; to this the defendants’ counsel objected that the conversing is alleged in the pleadings to have been on the 7th December, that Bishop was acting under an execution regular on its face, and had a right to do what he had done ; and whether Bishop had a legal right or not to take the property, he took it into his possession and converted it; if there was any conversion, it was long before defendant Boyd had anything to do with it, Boyd only acting as auctioneer and salesman for Bishop, and that Boyd could not be held jointly liable with the other defendants. The court overruled the objection, to all 'of which the defendants’ counsel severally and duly excepted; and Bishop answered that James was there when Boyd was selling the butter, that James indemnified him in taking the property.
    “ Bishop being cross-examined said, he took the butter by virtue of the execution in favor of James against John Bates, one of the plaintiffs, which execution was produced in court, which execution was in the words and figures following, that is to say:
    “ City of New York, ss.

    “The people of the State, of Hew York to any constable of the city of Hew York, and to every of them, Greeting—
    “ We command you, as before we commanded you, to cause to be made of the goods and chattels of John Bates, defendant in the said city, the sum of sixty-two dollars and thirty-four cents, which Edward D. James, plaintiff, lately in our Marine Court of the city of Hew York, recovered against him in a certain action, and also the sum of seven dollars and thirty cents adjudged by the said court to the said plaintiff for his costs and charges by him, about his said action, in that behalf expended, and have you that money before the said court at the City Hall of the said city, in sixty days from the date hereof, to render to the said plaintiff, and have you then and there this precept.
    “ Witness our Justice of our Marine Court of the city of Hew York, at the City Hall of the said city, the 1st day of December, 1852.
    By the Court,
    Isaac Dayton, Clerk.

    “ The plaintiff here rested, and the defendants, by their said counsel, moved that the complaint be dismissed, as to all the defendants, on the ground that Bishop took the property as constable, under and by virtue of an execution which was regular on its face, and that- he and the other defendants were therefore protected under it, and that Boyd in any event.could not be held jointly, and that the complaint should be dismissed as to him. The court denied the motion, and the defendants’ counsel duly excepted thereto. The defendants then put in evidence a judgment, upon which the said execution issued, obtained in the Marine Court, in and for the city and county of ¡New York, in favor of defendant James, against John Bates, one of the plaintiffs, on the 5th day of March, 1845, for the sum of $69 64; that an execution was issued on the day of the rendition of the said judgment, and thereafter returned unsatisfied; and that on the 23d day of January, 1846, an alias execution was issued, which was also afterwards returned unsatisfied, and that on the 1st day of December, 1852, a plv/ries execution, the one now in court and in question, was issued in due form of law upon said judgment, and under which the butter in question was taken by the levy endorsed on the execution ; the butter was taken 7th December.

      “ The evidence was here closed; the said Justice then charged the jury, among other things, as follows—that the execution against John Bates, even if valid, rendered no protection to either of the defendants, if the butter belonged to the plaintiffs and was sold out and out. In such a case all that could be sold was the right, title, and interest of John Bates only.
    “ That more than six years having elapsed since the rendition of the judgment in the Marine Court, before the execution in question was issued, no execution could have been then legally issued therein.

      u The execution was no protection to any of the parties concerned in the taking or sale of the butter. To this part of the charge the defendants’ counsel excepted.
    “ That if they found upon the evidence that all the defendants participated in the selling of the butter, and that the butter belonged to the plaintiffs, they were jointly liable to the plaintiffs for the value of the butter at the time it was sold? and interest on that sum to the time of rendering their verdict. To this part, of the charge the defendants’ counsel then and there excepted.

      Radcliffe, for the defendants, appellants,
    insisted that the judgment should be reversed and a new trial be granted upon the following grounds.
    I. The defendant Bishop took the property, as constable, by virtue of an execution, regular on its face. This protected Bishop, though the judgment be void, and the complaint should have been dismissed as to him. (Parmelee v. Hitchcock, 12 W. R. 96; Saracool v. Boughton, 5 W. R. 170; Horton v. Hendershot, 1 Hill, 118; Earl v. Camp, 15 W. R. 562: Cow. Tr. (2d ed.), 399, 400.)
    H. The court erred in denying the motion to dismiss the complaint.
    At this stage of the suit there.was no cause of action made out against the defendants; and certainly none as to Boyd or Bishop.
    HI. The execution being regular on its face, protected Bishop in taking and removing the property of John- Bates, the defendant therein; Bishop having the right to levy and sell the title or interest of John Bates, which was inseparable, and the plaintiffs offering no receiptor or security, had a right, and it was his duty to remove the property. (Cow. Tr. 1072; 10 W. R. 349 ; 11 Id. 548 ; 14 Id. 124, 5.)
    IV. If there was a wrongful taking and conversion, it was on the 7th Dec. and the sale on the 15th formed no part of the original cause of action; and for this reason the judgment is erroneous, as to Boyd at least. (Sedley v. Sunderland, 3 Esp. No. P. 6, 202; Bishop v. Lyman, 6 N. H. R. 268; 3 Val. Phil. Ev. with (Vancot’s) notes, 187.)
    V. Boyd had nothing to do with the property till eight days after it was taken, when he only acted officially under Bishop, as auctioneer. And the complaint should have been dismissed as to him.
    VI. The sale of the property out and out, beyond John Bates’ interest, is the subject of complaint only by the other two plaintiffs, and not by John Bates; there is no pretence that his interest in the property would more than have satisfied the execution.
    On this point the judge erred in his charge.

      The plaintiffs, by their counsel, were present, and simply objected to the sale, without stating any ground or' advising a different sale.
    VII. On the sale, the butter, except one firkin, was bid in for the plaintiffs, and the rule of damages would be the price for which it sold at auction, and not the real value of the butter.
    On this point the judge erred in his charge.
    The butter was bid in on behalf of the plaintiffs for their benefit, and the proper measure of damages is the amount of the bid, and not the value of the property. (Baker v. Freeman, 9 W. R. 36.)
    V1JLI. The fact that the judgment had been rendered over six years when the execution issued, does not make the execution so far void as to render no protection to Bishop and others acting under him, he having no notice of the fact.
    If the judgment was outlawed, the execution was merely irregular, and could only have been set aside on motion.
    The judgment was valid, and not outlawed ; and if outlawed, it is only voidable. If the plaintiffs relied upon the statute of limitations, they should plead it in their reply in avoidance. (1 Chitt. Pl. 556, Pr. 169.)
    IX. The judgment, then, being erroneous as t<$ one or more of the defendants, being for a tort, it must be reversed vn tofo. It cannot be affirmed as to one or more of the defendants, and reversed as to the others. ' (Cruickshank v. Gardner, 2 Hill, 338 ; Sheldon v. Quilin, 5 Hill, 441.)
    X. The judge erred-in his charge as to the validity of the judgment and execution, and protection of the defendants and their liabilities under the execution, and the sale and rule of damages, as severally excepted to on the trial.
    XI. There is no pretence that the defendant, John Bates, had paid the judgment to James; and the execution being at least á protection to Bishop, John Bates has no cause of action against Bishop. The levy was not excessive. The other two defendants alone could only sustain an action for their two thirds of the property.
    There is a misjoinder of plaintiffs.

      J. E. Cary for the plaintiffs.

      There is no error in the ruling of the Court. The sale by an officer of the entire property in goods owned by two jointly on a fi. fa. is an abuse of the legal authority, which renders the officer liable as a trespasser ah mitío. (Waddel v. Cook, 2 Hill’s Rep. p. 47; 7 Howard’s Practice Rep. p. 383 ; 2 Code Reporter, 50.)
    The jury have found that the entire property was sold by the defendants.
    The defendants not only sold the entire interest in the butter, but on pretence of collecting a debt of $69 64 against one of the plaintiffs, they took and sold property worth $300; and that, too, when, it being in tubs, they could have sold just enough to pay the execution. The whole shows a reckless disregard of law and the rights of the plaintiffs.
    The judgment on which the execution was issued, was barred by the Statute of Limitations. (2 R. S. 295, § 18; Code, p. 73, § 91; Lester v. Redmond, 6th Hill’s Repts. 590.)
    The time in which execution could be issued has expired, and it was a nullity.
    By Sec. 12 of § 64 of the Code, page 59, it is provided as follows : “ Execution may be issued on a judgment, heretofore or hereafter rendered in a justice’s court, at, any time within five years after the rendition thereof.”
    By § 68, page 64, the provisions of Section 64 are made applicable to “the courts embraced in this title;” that is, Title VII—“Of Justices’ and other inferior courts in cities,” “Marine Court in Hew York City.”
   By the Court. Duer, J.

We can look only at the exceptions that appear upon the face of the bill. Hence the objection that John Bates is improperly joined as a plaintiff, and that the action should have been brought in the names of the other partners alone, cannot now be taken. It was not taken upon the trial, and is not raised in the pleadings (Cook, § 148). We add, that if the execution was a nullity, John Bates was not only a proper but a necessary party. We are not to be understood as saying, that, in all cases where the property of a firm has been sold under an execution against one of the partners, an action for its recovery or value may not be properly brought in the names of all the partners. There are dicta that look that way, but no decision; and we regard the question as open and doubtful.

The first exception, that to the competency of Bishop as a witness, has been properly abandoned ; it was plainly untenable. The objection to the admission of the proof that Boyd participated in the sale was properly overruled. The sale is stated in the complaint as a distinct cause of action, and if it was unlawful, all who acted in it with a knowledge that it was forbidden, as Boyd certainly did, did so at their peril, and rendered themselves liable as trespassers ab mitio. The motion to dismiss the complaint was properly denied. If the plaintiffs were entitled to recover at all they were so upon the evidence which had.then been given, and that they were so entitled we cannot doubt. The law is fully settled, that, under an execution against one partner, jt is only his right and interest in the partnership property that can be sold; and if the entire property is sold as his, it is an abuse of the process, which renders not only the officers but all who participate in the sale liable as trespassers (Waddell v. Cook, 2 Hill, 49 ; Walsh v. Adams, 3 Denio, 125). Here the defendant, James, directed the sale, Bishop was the officer holding the execution, and Boyd made the sale, as auctioneer. The decision of the judge, therefore, that they were jointly liable was manifestly correct.

We incline also to think that he correctly decided, that, under the provisions of the Code, the execution was a nullity; but whether it was so or not is quite immaterial. If the exe- = cution was valid the sale under it was just as illegal as if none had been issued ; and the judge was, therefore, right in saying that the execution afforded no protection to any of the parties. The amount of the damages furnishes no ground of complaint. The true rule for the measure of damages, and the only rule applicable to cases of this description, is that which was laid' down by the judge. There is no evidence that the property was bought in by the plaintiffs, and the fact is not admitted.

The judgment must be affirmed with costs.