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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 582 The judge was, in my opinion, correct in excluding the evidence offered, to show that Sutherland, after giving the mortgage to the plaintiffs, executed mortgages upon the same property to other persons, which were fraudulent as to his creditors. These subsequent mortgages were given about a month after the plaintiffs' mortgage, and it was not offered to be shown that they had any knowledge of them. The rule contended for by the defendant's counsel would place it in the power of a debtor, who had in entire good faith given a security to a creditor for an honest debt, by his own act to create evidence which might invalidate the security without any fault on the part of the creditor. The only influence which such evidence could have upon the minds of the jury would be to create a belief that as the debtor was shown to be capable of a dishonest act, very probably his transaction with the plaintiff was induced by the same bad disposition. This would not be a legal inference, but a bare conjecture. Cotemporaneous acts of the parties to a conveyance alleged to be fraudulent may, in general, be shown; but these subsequent mortgages were not connected as to time with the plaintiffs' security. I do *Page 583 not perceive that the fact that Sutherland was permitted to sell the goods by retail has any influence upon this particular question. That circumstance did not aid him in making the fraudulent mortgages. Had he even been out of possession, he could have again mortgaged the equity of redemption for an honest purpose, and the subsequent mortgagee could have redeemed the prior mortgage. The possession of Sutherland, and the power of disposition in other respects which he was allowed to exercise over the property, presented another question, but did not tend to render his fraudulent conduct, in giving the other mortgages, evidence against the plaintiffs.
The defendant clearly had a right to show, upon the question of fraud, that the value of the goods mortgaged to the plaintiffs was disproportioned to the amount of their debt. It might tend, with other circumstances, to show an intention to hinder and embarrass the other creditors of Sutherland by covering up his property. But I do not think the evidence, which the judge excluded, could have been understood to be offered with that view. The offer was to show that the sheriff left goods enough, which were included in the plaintiffs' mortgage, to satisfy their debt. The apparent object was to show that the plaintiffs were not injured, because they might still realize the amount of their demand out of the goods which remained. It could not, I think, have occurred to the judge that the motive was, as now argued, to show the aggregate amount of the property levied on, with a view to contrast that amount with the debt intended to be secured. It was not contended on the argument that the evidence was material for any other purpose; and it clearly was not. The plaintiffs' mortgage was forfeited before the seizure by the sheriff, and they had become the owners of the property embraced in it.
This court has decided that where, upon the giving of a chattel mortgage on the stock of goods in a store, the mortgagor is permitted, by the assent of the mortgagee, to continue *Page 584 to sell them by retail at his discretion for his own use, as he had done before, the mortgage is fraudulent and void against the creditors of the mortgagor. (Edgell v. Hart, Court of Appeals,December term, 1853, affirming the same case reported in 13Barb., 380.) There was considerable evidence in this case to bring it within the principle of that decision; but Sutherland's testimony tended, in some degree, to show that his sales, subsequent to the mortgage, were made in pursuance of an arrangement between the parties that Sutherland might dispose of the goods for cash, and apply it on the plaintiffs' debt, and that he applied the money in that way. The judge was requested to charge in accordance with the doctrine upon the subject, which we laid down in Edgell v. Hart, and he responded to that request by saying that such was the effect of the charge which he had given. The defendant, therefore, had the benefit of the rule to the extent of having it laid down correctly to the jury. If they failed to find in accordance with it, the error is one of fact, which we cannot review.
The judgment ought, therefore, to be affirmed, unless an error was committed in that part of the charge which related to the defendant's complicity in the alleged trespass. The defendant was allowed the benefit of the position that he would not be responsible for conveying to the sheriff the instructions of his clients to seize the goods in question, if he did nothing more. That was the view of the judge, and in that I think he was correct. In general, all who aid and abet the commission of a trespass are liable jointly or severally, at the election of the party entitled to the action. But where one acts only in the execution of the duties of his calling or profession, and does not go beyond it, and does not actually participate in the trespass he is not liable, though what he does may aid another party in its commission. The rule was carried far enough when it was held that the sureties, in an indemnity bond, of a party wishing to procure property to be seized upon legal process, *Page 585 were responsible in trespass, the seizure being unwarrantable (Davis v. Newkirk, 5 Denio, 92). I do not affirm that that case was incorrectly decided, for there was force in saying that all the obligors in the bond might be held to have requested the seizure; but the principle clearly would not extend to the scrivener who drew the bond, or the attorney who made out the execution, though they knew the purpose to which they were to be applied. Upon the same principle which shields the attorney who simply conveys to the officer the instructions of his clients, I should hold that where the party directing the seizure finds it convenient to empower his attorney to execute the instrument of indemnity in his name and behalf, as his agent, the attorney so executing as agent would not be a party to the seizure, so as to make him a trespasser, if it should turn out to be unwarranted; and such I understand to have been the view of the judge. He assumed that the act of executing the bond as attorney would be harmless, provided the defendant had sufficient authority from the principals. But the instrument which the defendant did execute was under seal, and his authority was an unsealed letter. Clearly he could not, under that authority, execute a specialty, and he therefore exceeded his authority. The judge instructed the jury that if he had gone beyond his authority in this regard, that circumstance alone made him liable, if the plaintiffs in other respects were entitled to recover. Now although he could not, under the letter which his clients wrote to him, bind them by a covenant, the power was ample to enter into a written promise, on their behalf, to indemnify the sheriff; and the paper which he signed in their names sufficiently expressed the consideration to render the agreement valid without regard to the seal; and this court has decided that in such cases the instrument is valid as a simple contract, though executed under seal, provided the law did not require the particular contract or conveyance to be a sealed instrument. (Worrall v. Munn, 1Scld., *Page 586 229.) The question then arises whether the fact that the attorney used a seal, when he had no right to do so, and when that circumstance did not impair the contract which he made — that contract being after all the precise one which he was authorized to make — so changes his relation to the seizure as to render him liable to the plaintiffs as a party aiding or abetting its commission. I am of opinion that it does not. If he would not have been liable had he executed the paper in form as a simple contract, or if, executing it as he did, his authority had been under seal, I do not think the formal defect in the execution of the paper will make him responsible. I do not perceive that this circumstance in any way affected the plaintiffs. It is merely a question between the defendant and the sheriff. The latter did not get an instrument of the precise legal character which he supposed he received, but the one he did get gave him a remedy against the principals substantially the same as though it had been a specialty. The principle upon which an indemnitor is made liable in those cases is, that the instrument is equivalent to a request to make the seizure. This instrument concluded the plaintiffs in the execution from denying that they requested the seizure. It conveyed to the sheriff their request to make the levy as effectually as though the seals had not been affixed to it. The defendant was simply their agent to put that request in writing in their names, and this he effectually did, though not in the exact legal form which they contemplated. If I am correct in this view, the judgment ought to be reversed and a new trial granted.
COMSTOCK, J., having been counsel in the cause, took no part in the decision.
Judgment reversed. *Page 587