Wilson v. Conine

Kent, Ch. J. delivered the opinion of the court. 1. The.paper offered in evidence by the. defendant, and rejected by the judge, was an exemplification under the seal of the court of chancery, of a decretal order awarding execution on a prior decree. This decretal order recited the substance of a decree of the court for the trial of impeachments and the correction of errors, which affirmed the prior decree of the court of chancery, and ordered it [281] to be carried into execution* I think the paper offered was insufficient, and that it was requisite to have produced the original decree, which was the basis-of the execution. It would be too great a relaxation of the rules of evidence, to allow the recital of a decree to be a substitute for the deeree itself. • 2. The execution was also properly rejected, as being no justification to the vendee in a sale under it, without producing the judgment or decree warranting it. 8 Co. 97. 1 Blacks. Rep. 69. Britton v. Cole. Salk. 408. 3. The jury were' competent to allow interest on the value of the chattel from the time of the conversion by way ,of damages. (1 Johnson, 65.) There is'nothing in the case from which we can infer that the interest was an unreasonable measure of damages. 4. As to the last point, it is probable that the omission to produce the original decree arose from the slip and inadvertence-of the defendant’s counsel, but the question is, whether the -merits- of the ease are so strongly with the defendant as to require our interposition. On the defendant’s own showing, he was entitled only to an undivided third part of the rum ; and it was proved that he took it out of the plaintiffs’ possession, contrary to their will, and when they had the greatest portion of interest in it, and an equal right to the possession. • As this last point is an appeal to our equity, we cannot but take-notice of the rule in chancery from whence the execution in the present case proceeded, that partnership property taken in execution for a separate debt, cannot be held against joint creditors, and that the share of such partner for his separate debt is to be applied, only after-the partnership accounts arc-taken and settled. (4 Vesey, jun. 396.) We are therefore of opinion, that the verdict ought not to.be set aside. . Judgment for the plaintiffs.