Stevens v. Curtiss

Hosmer, Ch. J.

This is an action of assumpsit, brought by a constable, for the non-delivery of certain enumerated* articles of property. The plaintiff had levied an execution, on them in favour of Eras tus Ives against Hezekiah Turner, and, having delivered them to the defendants, took their written-promise to re-deliver them at the post. From the defendants^ plea, it appears, that the same execution had before been is* sued, and put into the hands of Robbins, a deputy-sheriff, for collection, to whom paymept was made,-of the debt, and of his fees ; and that Robbins fraudulently, procured an alias execution, and delivered it to the plaintiff for collection ; who levied it on the property received of him by the defendants* It is likewise averred, that the fees of the plaintiff were paid *265to him by Turner ; and that the estate levied on had been returned to|tum*

The first question made relates to the sufficiency of the plea. It is incontrovecübly clear, that the plaintiff casa have no title to the matter demanded, unless he has an interest, directly or indirectly, personally, or as being responsible to another, in the subject matter of the suit. Now;, .what passi-ble interest can he have ? To him, personally, nothing ⅛ due: his fees have been paid. The execution creditor has no claim : his debt has been satisfied. Turner, the debtor, can have no demand on the plaintiff; for the property has been returned to him. If he should collect the execution, he would be accountable to no person for the money ; and it is clear, in any event, the defendants alone could recover it out of his hands. The injustice of the plaintiff’s proceedure is too palpable to justify, on any principle, his collection of the monye. The cases of Lord v. Benton, 2 Root, 335., Hall v. Fitch, 1 Root, 151., Reed v. Tousley, 1 Root, 374., and Phelps v. Landon, 2 Day, 370., are decisive against the plaintiff’s supposed right of recovery.

It has been urged, that the facts averred by the defendants, are not legally pleadable ; and, of consequence, not admitted by the demurrer. The assertion has not been supported by the argument. In this, as in other cases, the defendants may take advantage of the plaintiff’s want of title to support his suit; and the cases already cited subvert this objection.

The replication of an audita querela, brought by Turner against Ives, averring payment of the execution, in which the latter was found not guilty, and recovered his costs, is of no avail in this case. On this point, it is decisive, that the defendants were neither parties nor privies to the judgment; and against them it is not admissible in evidence. Vide the cases in Phill. Ev. 222. & seq., and Sturges v. Beach & al. 1 Conn. Rep. 507.

Were it competent testimony, it would make no difference in the result. It clearly could not operate otherwise than by estoppel. Now, an estoppel results, not from the judgment, but from the matter alleged by the party, and upon which the recovery proceeds, which creates the estoppel. The question is, as to the effect of a precise allegation made in pleading, on the record, and trial, and found between the parties. Outram v. Morewood & al. 3 East, 346. Now, on the *266audita querela, there was no precise allegation made in pleading, and found on the record ; no issue taken on a precise point, whereby an estoppel might be constituted. It is impossible to conjecture, on any plausible data, what facts were, and what were not, found by the jury. The verdict that Ives was not guilty, may have arisen from Turner’s being unprepared to prove the judgment alleged, or the issuing of the execution, or any one material fact, which he had averred.

I am of opinion, that in the determination of the superior court there is manifest error.

'The other Judges were of the samé opinion.

Judgment reversed.