Truslow v. Putnam

Hogeboom, J.

[after referring to the facts.]—1. I am inclined to think Lester had a leviable interest in the sewing machines, liable to be sold on execution, but as plaintiff was in possession, having a valid lien thereon, and special property therein, they were not liable to be taken out of plaintiff’s possession any more than the goods of a partnership from the possession of the firm, on an execution against an individual partner, hence, that the constable was liable to an action for removing the goods,°and for their whole value, if the lien exceeded such value.

2. I am also inclined to think the objection to the attachment (which was overruled at the circuit) can not be considered. The defendant may have other evidence to explain, or account for the apparent defect in the attachment.

3. I think the evidence objected to was properly excluded. West was in charge of the shop, but not to answer unauthorized questions as to who was his principal. Neither Lester nor Truslow put him there for that purpose.

Nor was the evidence similar in principle to that admitted in behalf of the plaintiff. There the sheriff levied on the property in the shop of which West was in charge, and it was proper to show that West notified him at the time, that the property was Truslow’s and not Lester’s. It was a notice proper to be proven, to show that the constable had information as to the title, and to prevent any pretense of estoppel upon Truslow from the silence of his alleged agent when a claim was being made on the property as belonging to Lester. ' >

The judgment should be affirmed.

All the judges concurred, except H. R. Seldeu, J.

Judgment affirmed, with costs.