Keeler v. Fassett

[542] The opinion of the court was delivered by Royen, Ch. J. It is laid down in the English books, on the authority of Jones v. Winckworth, Hardr. 111, that trover will not lie for a record, because it is not private property. The reason assigned for the rule indicates its proper limitation. In the first place, the denial of the action should doubtless be understood as extending to individual parties, who may suppose themselves interested in the preservation of the record, but not to a person having the official custody of it; for possession, accompanied with the responsibilities of such a person, would seem to constitute a sufficient title to maintain the action against a wrong doer. In the next place, the rule should be taken as being predicated of the record strictly so called, which is made and preserved by public authority, and not of such papers as have relation to the record, but are not parcel of it. Of this latter character, we think, was the writ of execution, for which the present action was brought. The record could show no right acquired under or affected by it, for it had not been executed. The plaintiff purchased it, and it had in no effective sense become incorporated with the very record. We also consider, that the plaintiff continued to have an interest in it, though it had become an expired process; since its absence from the office of the justice might embarrass her in procuring a fresh execution on her judgment, and might even create a presumption, that the judgment had been satisfied. And hence, as between these parties, the plaintiff was entitled to have possession of the writ, and may well sustain this action, if the defendant persisted without right in withholding possession from her. The ground, on which he first claimed to keep possession of the paper, was clearly without any legal or just foundation. Lewis Keeler derived no right, from his mere relation to the plaintiff, to make a sale or transfer of her property, and much less to dispose of it in satisfaction or security of his own debts. Reeve’s Dom. Rel. 290. The case excludes the supposition of any license, or consent, on her part. His pledge of the judgment and execution to the defendant was therefore a nullity as against the plaintiff. The other ground of defence depends upon the record of the trustee process, offered in evidence on the trial and rejected. By that it appears, that when the defendant refused to surrender the [543] execution in compliance with the plaintiff’s demand, he had been summoned by Scott, the execution debtor, as the trustee of Lewis Keeler. And that proceeding appears to have terminated in a judgment in favor of Scott against Lewis Keeler, and a judgment fixing the defendant for some thirty or forty dollars as trustee of said Keeler, on account of the plaintiff’s judgment and execution against Scott. The only question to be determined upon that record was, whether the plaintiff so became a party to the suit, and had her right to the judgment and execution against Scott so adjudicated and determined against her, that she became barred from asserting that right in a distinct .action against the trustee. Those sections in the trustee act, which provide for the intervention of claimants to the property in the trustee’s hands, were doubtless intended to have an ulterior effect, as between the claimant and trustee. And perhaps it would be going too far, to hold, that the rights of an infant, who becomes a party to the suit as claimant, may not be barred by an adverse decision. But we think, that, to render such a proceeding conclusive against an infant, it should appear, that his rights were actually tried upon evidence and adjudicated. We are also inclined to consider, that a claimant under these provisions of the statute should rather be regarded as a party defending, than as a party sueing, or prosecuting ; and, therefore, that a guardian should be required in the case of an infant claimant, to protect the interests of the infant in court. Here the appearance was by prochein ami, and the record offered in evidence does not show any such hearing and trial of the claim, as we deem to be necessary in such a case. No evidence appears to have been offered in aid of the record, if, indeed, such evidence would have been admissible. We think the record was correctly excluded. Judgment of county court affirmed.