Hayes v. Davidson

Brady, J.:

This action is brought to recover damages for the wrongful conversion by the defendant of certain personal property which was part of the estate of Duncan A. Grant, and claimed by the plaintiff as the substituted assignee of Grant. The taking of the goods is admitted. They appear to have been seized by the defendant, as sheriff, under certain warrants of attachment issued against Grant upon the ground that he had assigned and disposed of his property with the intent to defraud his creditors. Some of the goods seized were sold, and it appears that about three weeks after the eommencement of the suit for the conversion of the stock taken from Grant the merchandise which was not disposed of was returned by the sheriff to the plaintiff and accepted by him. Upon the application of the defendant an order was made directing the plaintiff to furnish a statement in writing of the goods, chattels, fixtures and other personal property alleged to have been carried away and converted by the defendant, together with a statment of the alleged value of each article, piece or portion of the property so alleged to have been taken, and that in default of such an account the plaintiff should be precluded from giving evidence on the trial of the alleged conversion of the property mentioned in the complaint or the value thereof.

The defendant is a public officer and the conversion charged-against him was an act which he was called upon to perform by virtue of the various warrants of attachment issued. The allegation in the complaint is that between the 4th of January, 1884, and the twenty-fifth of February following, the defendant, as sheriff,, willfully and wrongfully seized, took and carried away and converted to his own use certain goods and merchandise, the property of the estate of Grant, and belonging to the plaintiff as assignee. But this is too general an allegation in an action like this and the court below was justified in directing the order which was made in the exercise of its discretion, and it cannot be interfered with under the circumstances revealed by the papers submitted on this appeal.

The order should therefore be affirmed, with ten dollars costs and the disbursements of the appeal.

Davis, P. J.:

Ordinarily I should be of opinion that a sheriff who is sued for taking on process a stock of goods from the possession of an. assignee, and removing them from his possession is not entitled, when sued by such assignee, to demand a bill of particulars of the items of the stock of goods so seized and taken. Presumptively his possession of them would be held sufficient to give him full knowledge of what they consist, and a better opportunity to know their items than the assignee in trust from whom they have been taken.

In this case a part of the stock was sold by the sheriff and another part returned, by consent, to the assignee. Reasonable diligence would of course have enabled the sheriff to know what part and how much of the stock was sold, and as to that part he should be in better position to know the particulars than the assignee can be presumed to be. But as to the items returned to the assignee, if such return were in gross of a remaining bulk, the assignee who received them ought to be in better position to know the items than-the sheriff.

Upon the facts appearing inthe affidavits I think the order ought to be so modified as to limit the bill of particulars to the items returned to the plaintiff, so that the sheriff may be relieved from the necessity of proving those items as part of his defense, and Iris liability in respect thereof be limited to such damages as the taking, withholding and returning with acceptance by plaintiff subject him.

With this modification the order should be affirmed, without costs of this appeal to either party.

Daniels, J.:

I am convinced that the modified direction suggested in the opinion of the presiding justice is as broad as the facts of the case will justify. There would be neither injustice nor inconvenience produced by an entire denial of tbe motion. Eor tbe sheriff must have known the goods, and of what they consisted, which he seized and also those which were sold by him. And excluding them would as clearly indicate the articles returned. But as the plaintiff has the ability to furnish a statement of the articles returned, and that will remove all possible ground for misunderstanding concerning tbe subject of tbe controversy, he may well be required to do that. And to such a direction I therefore agree.

Order modified, as directed in opinion of Davis P. J., and affirmed, as modified, without costs to either party.