Pryne v. Westfall

By the Court, Gridley, J. We deem it necessary to notice but one of the grounds of error relied on as fatal to the judgment rendered by the justice. The action, in the court below, was brought by the constable for the benefit of Barber, the plaintiff in the execution, against three defendants, one of whom was the defendant in the execution and the others were Strangers; the defendants pleading separately. The constable [499] had levied upon the property in question, but had taken no actual possession of it. It is true that the property was of a ponderous character, so as to excuse a purchaser from the duty of removing it to his actual possession under the act relating to fraudulent sales. That circumstance does not, however, alter the nature of the possession. It was constructive only. In such a case, we think it indispensable that the plaintiff, though he be an officer, should prove a judgment. Were he a defendant, his execution, without the judgment, if valid on its face, would afford him protection against a suit brought for the seizing the property by the defendant in the execution. (Savacool v. Boughton, 5 Wend. 170.) Had he taken actual possession of the property, such possession would be prima facie evidence against a stranger. But when he sues, as he does here, on a mere constructive possession, created by the levy of the execution, to recover for the benefit of the plaintiff in the judgment, we think he must prove the judgment; if required to do so. Such is the reasonable rule, and such we understand to be the result of the authorities. (See the authorities collected in 2 Cowen & Hill’s Notes, 107, 8, 9; 1 Hill, 118; 2 Denio, 642; 16 Wend. 562; Cowen’s Tr. 278, and cases there cited.) The objection, that the judgment should be proved, was taken during the progress of the trial, in a general objection to the right to give the execution in evidence, without further proof. If it be said that this objection was too general, to inform the justice of the precise ground upon which it was urged, that remark will not apply to the distinct request, made to the justice for his instruction to the jury on that subject, before the cause was finally submitted. The answer of the justice was significant and decisive. It was a refusal placed, 1st, on the ground that the objection had not been made till after the execution had been read to the jury; and 2d, that the execution was good evidence, and had been read to the jury as such, without the judgment. There was no complaint that the witness or documentary evidence to prove the judgment, were not present in court; if in truth the plaintiff had been provided with any such evidence. Nor was there any reasonable ground [500] assigned for refusing to give the instruction asked for. When a justice has a discretion, it is a judicial discretion, to be exercised reasonably and not arbitrarily. (7 John. 306.) The refusal was substantially a charge that no proof of the judgment was necessary, and was therefore erroneous. At all events the point was clearly taken by the defendants’ counsel before the jury, and there was no ground for the presumption of a waiver of the proof on the part of the defendants. And without it, there was no ground for either a verdict ora judgment against them. The judgment of the common pleas must be affirmed.