Crandall v. The People.

erred in this case by ruling that they could not prescribe rules for the argument of counsel, so far as the ruling applied to the question whether the people's counsel could comment upon the fact that the prisoner had not been sworn. But the people's counsel did not thereafter argue that any inference could be drawn against the prisoner because he had not been sworn. This fact, and the ruling and charge of the court, that no inferences or presumptions could be drawn against the prisoner because he had not been sworn as a witness in the case, rendered the refusal of the court to prevent the people's counsel commenting on the prisoner's omission to testify in his own behalf harmless. The error of the court was like a decision to admit improper evidence when no evidence is given under the decision. But I think, if the people's counsel had argued to the jury, after the court refused to prevent him, that the fact that the prisoner had not been a witness for himself was a circumstance against him or a fact that they should consider in determining the case, the refusal of the court to stop that line of argument would have entitled the prisoner to a new trial. But it is unnecessary to decide this question in this

case.

It is unnecessary to notice the numerous requests of the prisoner's counsel respecting the charge of the court to the jury, or the many exceptions to parts of the charge, or to refusals to charge the jury; for no error was committed, to the prejudice of the prisoner, by the refusals to charge the jury, or in the charge made, when the whole charge is con sidered together.

I am of the opinion, if the court had read the statute to the jury under which the indictment was found, and had then said to them that they had no right to convict the prisoner on the testimony of the prosecutrix, unsupported by other evidence, and that it was their province to determine whether she had been sufficiently supported by other evidence to justify them in finding the prisoner guilty, the charge would have been all that was required by the case LANSING VOL. II.

40

Hodge v. Adec.

upon the evidence. The charge was as favorable to the prisoner as the one I have said would have been sufficient.

In regard to the whole case, I will say we think no error was committed on the trial which would justify this court in reversing the judgment of the Court of Sessions. And our conclusion is, that the judgment should be affirmed. Judgment affirmed.

JOHN HODGE, Respondent, v. GEORGE ADEE and JAMES SMITH, Appellants.

(GENERAL TERM, SIXTH DISTRICT, JANUARY, 1870.)

Possession of a chattel for an indefinite time, with an agreement to pay for its use, and an understanding with the owner that the holder may pur chase at any time, does not constitute a leviable interest therein. But where a chattel was so held, and a levy made thereon, and a sale of the chattel under execution against the property of the holder, who intermediate the levy and sale purchased the chattel,-Held, that the levy held good, notwithstanding a renewal, in due time, of the execution prior to an adjourned day of sale (the notice having been originally for a time nos within sixty days from the date of the execution), and although, previously to the execution sale, there had been a resale to the original owner, who knew of the levy.

Where the possession and withholding of personal property, obtained through an execution sale thereof, constituted the unlawful taking and conversion in an action therefor, and the summons was delivered for ser vice by a justice of the peace to a person duly deputized by him, though not a regular constable, before the sale, and was served on the defendants immediately after,-Held, that the action was commenced before the cause of action accrued, and that it could not be sustained.

This action was brought before a justice of the peace upon a complaint for wrongfully taking and converting a cow, valued at sixty dollars. The defendants pleaded a sale by the defendant, Smith, as constable, under execution against one Tupper, upon a judgment of a justice of the peace at Delhi, in Delaware county, rendered on or about August 27, 1864.

The summons in this action was issued September 23, 1867, and judgment recovered in favor of the plaintiff, from which

Hodge v. Adee.

the defendants appealed, and had a new trial in the County Court, where a jury gave a verdict for the plaintiff, upon which judgment was entered for $112.78 damages and costs, and the defendants appealed. The remaining facts appear in the opinion of the court.

Henry Davies, for the plaintiff.

George Adee, for the defendants.

Present-BALCOM, BOARDMAN, PARKER and MURRAY, JJ.

By the Court-BALCOM, P. J. The judgment rendered by Hathaway, as a justice of the peace, in favor of Forman, against Tupper, for twelve dollars and ninety-three cents, was not void, although the constable who served the summons in the suit appeared as attorney for the plaintiff on the return day, and presented the note on which the judgment was rendered, and proved the execution of the note as a witness. (See Wilkinson v. Vorce, 41 Barbour, 370.) It was erroneous, and it could have been reversed on appeal. (See 2 R. S., 233, § 44; Laws of 1864, p. 1006, chap. 421; Ford v. Smith, 11 Wend., 73; Miles v. Pulver, 3 Denio, 84.) But as it was only irregular, the execution issued on it was valid by virtue of which the defendant, Smith, levied on the cow in question and sold her, or Tupper's interest in her, and title to her. (See Wilkinson v. Vorce, supra.)

Hathaway's docket of such judgment was received in evidence without objection; and it will be presumed, if the objections now raised against the validity of the judgment had been taken on the trial, the summons would have been produced. It was not necessary to the validity of the judg ment, that the docket should show the place where the summons was returnable, or the place where the justice called the parties; and the plaintiff appeared by Smith as attorney, and the judgment was rendered. (2 R. S., 268, § 243, subdivisions 2 and 3.) And I am of the opinion the evidence

Hodge v. Adee.

showed that the judgment was sufficient to uphold the execution issued on it.

The evidence established that the plaintiff was the owner of the cow on the 31st day of May, 1867, when the defendant, Smith (as constable), levied on her, by virtue of the execution issued to him by Hathaway, on the above mentioned judgment which he had rendered in favor of Forman against Tupper, on the 29th day of August, 1864. The cow was then in the possession of Tupper. The plaintiff had said to him, he could keep the cow and pay for the use of her, and when he saw the way of paying for her, he (plaintiff) would sell her to him. But that arrangement did not transfer to Tupper a leviable interest in the cow; for the reason that the plaintiff had the right to take her from him at any time. Chief Justice SAVAGE, in Otis v. Wood (3 Wend., 498), reviewed several cases, and then said: "The principle of these cases is, that a person in possession of a chattel, having a right to such possession for a specific time, has an interest which may be sold." The fact that Tupper had the possession of the cow, and leave from the plaintiff to keep her an indefinite time, on paying the plaintiff for the use of her, and also had been told by the plaintiff he would sell her to him when he (Tupper) saw the way of paying for her, were insufficient to give him (Tupper) a leviable interest in the cow. (See 2 Cowen, 543; Strong v. Taylor, 2 Hill, 326; 4 Denio, 327; Herring v. Hoppock, 15 N. Y. Reps., 409.) It is clear that the hirer of a chattel must have the right to the possession of the same for some specific time to give him a leviable interest in it.

The cow remained in the possession of Tupper until she was sold by the defendant, Smith, as constable, by virtue of the execution issued to him by Hathaway; which sale was made on the 23d day of September, 1867.

The plaintiff sold the cow to Tupper on the 8th day of July, 1867; and the plaintiff had no title to or interest in ber against Forman's execution subsequent to that date, unless

Hodge v. Adee.

he acquired title to her by purchasing her from Tupper a day or two before Smith sold her, as above stated.

Smith posted notices that he would sell the cow, by virtue of the Hathaway execution, on the 29th day of July, 1867. But he did not sell the cow on that day; which day, as I compute the time, was not within sixty days from the date of the execution. Hathaway renewed the execution for the full amount on the 27th day of July, 1867; which time was within sixty days from the date of the execution.

It does not appear that Smith saw the cow, or made any memorandum respecting her on the execution, between the time he levied the execution on her on the 31st day of May, 1867, and the 23d day of September next thereafter when he sold her.

Executions issued by justices of the peace, "shall be returnable sixty days from the date of the same." (Code, § 64, sub., 12.) It is provided by chapter 512 of the laws of 1857 (Laws of 1857, vol. 2, p. 87): "If any execution issued by a justice of the peace upon a judgment rendered by him, be not satisfied, it may from time to time be renewed by said justice, by an indorsement thereon to that effect, signed by him, and dated when the same shall be made. If any part of such execution has been satisfied, the indorsement of renewal shall express the sum due on the execution. Every such indorsement shall be deemed to renew the execution in full force, in all respects, for sixty days from the date thereof." This statute was necessary in consequence of the change made by the Code respecting the time executions shall be returnable. (See 2 R. S., 251 and 252, § 145.)

It was decided in Chapman v. Fuller (7 Barb., 70), that "an execution, issued by a justice of the peace, may be renewed on the last day it has to run, so as to retain the lien thereof upon property levied on by the constable, sufficient to satisfy the execution, and which he has on hand, for want of bidders."

According to the principle of that decision, the levy Smith made on the cow on the 31st day of May, 1867, was kept