The jury have settled the question of fact between the parties, as to the ownership of the property levied on by the defendant as sheriff, and for the conversion of which this action is brought. They have found that it belonged to plaintiff and not to Myers, against whom the execution was issued. Their finding is not so unsupported by evidence, as under the rule in such cases, will justify an appellate court in setting aside the verdict.
The exception taken upon the trial to the declaration of plaintiff and Myers, in the absence of defendant, was not well taken. The object of the proof objected to was to show an actual change of the. possession of the property sold by Myers to plaintiff. The payments to the stable-keeper were made by Myers up to the time of the alleged sale and delivery, and he was told by both parties to the sale to charge the future expenses- upon the horses to plaintiff. Declarations explanatory of an act done are always admissible as part of the res gestee. '
The exception taken to the decision of the judge as to the tales-men summoned by the defendant or sheriff is not accompanied by any statement showing upon what precise point the objection rests. Were there any such talesmen on the jury ? The case is silent, except so far as to state that an objection was made to such tales-men, and they were thereupon rejected. How were the talesmen summoned ? by drawing them from the county box, or at the will of the sheriff? Were the talesmen summoned for this case, or for the court generally ? The case is silent as to these facts. If we are to assume facts, it will be that the jury were drawn in accordance with law, and for this case only. In such a case we are satisfied that the sheriff had no right to summon talesmen at his own will and selection. Woods v. Rowan, 5 Johns. 133.
Judgment affirmed with costs.