#### William R. H. Martin *et al.,*App’lts, *v.*Frank T Gilbert, Sheriff, Resp’t.1

*(Court of Appeals,*

*Filed February 25, 1890.)*

1. Replevin—Evidence.

On the trial of an action of replevin it is not necessary to formally put in evidence the affidavit used to obtain the requisition, the requisition itself or the return of the coroner, in order to have them considered by the trial court.

2. Same—Sheriee bound by-statements in bond given to coroneb a® to property in his possession.

Where the sheriff in order to re-replevy the property taken by the coroner gives a bond, he will not be allowed on the trial of the action to show that not more than one-quarter of the property described in such bond ever came into his hands. He is properly concluded by the recitals in the bond upon the question of what property was, as matter of fact, in his possession and taken by the coroner.

Appeal from an order of the general term, fifth depar,ment,' reversing a judgment in favor of the plaintiffs, entered upon the report of a referee, and granting a new trial. The action was brought for the purpose of recovering the possession of certain personal property described in the complaint as ready made clothing, “ and being 4 overcoats, 223 coats, 224 vests, 243 pairs of pants, 36 boy’s suits, 1 pair boys’ pants.” It was alleged in the complaint that the plaintiffs sold the above property and delivered the same to one Euslander, but that he had procured them through false and fraudulent representations, and that by reason of such representations, plaintiffs elected to rescind the contract *441of sale and recover possession of the property. It was also alleged that the defendant, Gilbert, was the sheriff of Brie county, and that he unlawfully detained the chattels above described, claiming to hold them by virtue of several writs of execution issued against the property of Ruslander by some of his creditors, and that prior to the commencement of this action the plaintiffs had demanded of the defendant the delivery of said goods, and that the defendant had refused to deliver the same.

It was also said that on the 24th of November, 1886, a writ of replevin was duly issued in this action to the coroner of Erie county, requiring him to take from the possession of the defendant these articles of personal property, and that under and by virtue of the writ the coroner duly replevied and took from the defendant such property, and that thereafter and on the 27th of November, 1886, the defendant duly executed to the coroner a bond or undertaking, entitled in this action, a copy of which is annexed to the complaint, and that after the execution and delivery of the same, the sureties justified and the undertaking was approved, and the goods and chattels were delivered by the coroner back to the defendant; that the chattels were worth $3,622.87, and that, by reason of the wrongful detention of the goods by the defendant, the plaintiffs had sustained damages to the value of $250. The material allegations in the complaint were denied by the answer.

Upon the trial of the action the plaintiffs put in evidence the bond or undertaking given by the defendant upon retaking the goods which the coroner had replevied from him by virtue of the writ in this action. The undertaking is preceded by the title of the case, and then it is stated as follows:

*Whereas,*The plaintiffs in this action claim the delivery to them of certain chattels specified in the affidavit made on behalf of the plaintiffs for that purpose, of the alleged value of $3,622.87, and have caused the same to be taken by the coroner of Erie county, pursuant to the Code of Civil Procedure, but the same has not yet been delivered to the plaintiffs; and, whereas, the defendant requires a return of the chattels replevied:

Now, therefore, we, Charles A. Sweet, of the city of Buffalo, county of Erie, by occupation a banker, and Charles G. Curtiss, of the same place, by occupation a maltster, do hereby jointly and severally undertake and become bound to the plaintiffs in the sum of $7,245.74, for the delivery of the said chattels to the plaintiffs, if delivery thereof is adjudged, or if the action abates in consequence of the defendant’s death, and for the payment to the plaintiffs of any sum which the judgment awards against the defendant.

Dated this 27th day of November, 1886.

Charles A. Sweet, Charles G. Curtiss.

This undertaking, although not signed by the defendant, was procured by him, and his attorney noticed the matter for a hear*442ing for tne justification of the sureties, and it was by reason of the giving of such undertaking that the property was returned to the defendant •

The trial resulted in a report in favor of the plaintiffs for the full amount claimed, upon which judgment was entered in their favor. Other facts are stated in the opinion.

*Hadley*Jones, for app’lts; *B. Frank*Brake, for resp’t

1

 Reversing 18 N. Y. State Rep., 1033.

Peckham, J.

The defendant claims that neither the affidavit to obtain the requisition, nor the requisition itself, nor the return of the coroner is in evidence in this case. He says that not one of them was formally put in evidence, and that therefore the court has no right to regard them, or any of them. We do not think it was necessary to formally put those papers in evidence in order to have them considered by the trial court. By § 1717 of the Code of Civil Procedure, all of such papers must be made a part of the judgment roll in the action, and a copy of each of them must be furnished to the court or referee upon the trial of the issue of fact. In looking over the case it would seem to have been tried upon the assumption that the papers were not only in existence, but were to be regarded by the referee for all legitimate purposes. Taking them into consideration, we find a statement in the affidavit that “ the plaintiffs are the owners of the following chattels hereinafter particularly described, viz.: Eeady-made clothing as follows: 4 overcoats, 228 coats, 224 vests, pants 248 pairs, 36 boys’ suits, 1 pair of boys’ pants.” The requisition is to the coroner of the county of Erie, and he is required to replevy the chattels described in the within affidavit. And the coroner certifies and returns that on the 26th of November, 1886, he executed the requisition endorsed on the affidavit annexed, for the delivery of the chattels mentioned in the said affidavit, “ by. taking possession of all thereof to be found in my county, to wit: 4 overcoats, 223 coats, 243 pants, 224 vests, 36 boys’ suits, 1 pair boys’ pants.” The return further stated that the defendant claimed redelivery of said chattels by giving to the coroner an undertaking in due form of law, and that the coroner then redelivered said property to the defendant. In the affidavit a statement is thus found of all the property claimed on the part of the plaintiffs to be in the possession of the defendant, and it is especially described in such affidavit.

The requisition requires the coroner to take the property described in the affidavit. The bond given by the defendant in order to keep the property recites the fact that the plaintiffs claim delivery to them of certain chattels specified in the affidavit made on behalf of the plaintiffs for that purpose, and that they have caused the same to be taken by the coroner of Erie county, pursuant to the Oode of Civil Procedure, but the same not having yet been delivered to the plaintiffs, the defendant requires the return of the chattels replevied, and the condition of the undertaking is that the sureties undertake and become bound to the plaintiffs in the sum named for the delivery of the said chattels to the plaintiffs, if delivery thereof is adjudged-

*443Upon the trial the defendant offered to prove that of the personal property described in the affidavit made by the plaintiffs, the defendant did not have in his possession, or under his control when the demand was made upon him on the part of the plaintiffs and at the time of the commencement of this action, more than one-quarter, and that not more than one-quarter of such property ever came into his possession, or was in his possession when such property was replevied by the coroner. This evidence was objected to on the part of the plaintiffs as tending to vary or alter the admissions made by the defendant in this action, contained in his undertaking given to the plaintiffs upon the retaking of the goods seized by the coroner herein, described in the affidavit accompanying the requisition. The objection was sustained and the defendant excepted. The general term of the supreme court has held that this was error, and on account thereof has reversed the judgment and granted a new trial.

We think the referee was right in rejecting the evidence. The affidavit of the plaintiffs described all the property claimed by them, and alleged that it was all in the defendant’s possession. The requisition required the coroner to take all that property. He proceeded to the execution of his writ, and in the course of the same he is met by the action of the defendant, which prevents his complying with the terms of the requisition. To prevent such compliance the defendant offers, as he has a right to do under the statute, an undertaking on his part. That undertaking is provided for by the statute, and in its recital, in order to state for what purpose and under what circumstances it is given, it is set forth in plain language that the plaintiffs claim the chattels specified in the affidavit made on behalf of the plaintiffs, and that they have caused the same to be taken by the coroner of Erie county, pursuant to the Code of Civil Procedure, but the same has not yet been delivered to the plaintiffs, and because the defendant requires the return of the chattels replevied, therefore the sureties agree and undertake as already mentioned. It was because of this undertaking that the defendant was enabled to retain possession of the property, and that undertaking used by the defendant recites the plain fact of the claim for the property made by the plaintiffs, and that it had been taken by the coroner pursuant to the Code of Civil Procedure. We do. not think that, under the circumstances, the defendant should be allowed to contradict the admissions of fact made in his own bond, by virtue of which he kept the property which had been taken by the coroner, and we think he is properly concluded by the recitals in such bond upon the question of what property was, as matter of fact, in his possession and taken by the coroner.

We cannot distinguish this case in principle from that of *Diossy*v. Morgan, 74 N. Y., 11. It is true that the facts in the *Diossy*case differ from those herein. In the former the stone in controversy was on plaintiff’s land and the defendant had placed men at work upon the stone who were engaged in cutting it and assuming possession and ownership of it. The sheriff took the stone for the plaintiff on the requisition in the replevin action, *444and the defendant prevented its delivery to plaintiff and procured its delivery to him by reason of the giving of the bond, which contained an admission that the property was taken from the possession of the defendant by the sheriff.

The defendant, upon the trial, sought to show that he did not. have possession of the stone when the action was commenced, and this evidence was rejected, and upon appeal to this court it was held that such rejection was proper. It is thus seen that there was no dispute as to the identity of the property, which, by virtue of his bond, the defendant obtained, with that described in the affidavit, and none that such property was then in defendant’s possession, and the only question was whether the defendant should be permitted to show that he did not have possession of •the property when the suit was commenced, although his bond contained the written admission that he did. This court said, per Rapallo, J.: “By means of this undertaking the defendants not merely prevented the delivery of the property by the sheriff to the plaintiff, but procured the delivery of it to themselves. The undertaking contains a plain admission that it was taken by the sheriff from their possession, and consequently was in their possession at the time of the commencement of the action,” etc. And again: “ Our holding is that the undertaking contains the admission of a fact, of which the defendants have availed themselves, to obtain possession of the property, and that therefore they cannot be permitted to retract it so as to deprive the plaintiff of his right to a re-delivery of the property to him.”

Has not this defendant caused a bond to be executed, containing a plain admission of a fact, viz., that the coroner had taken the property described in the affidavit from his (defendant’s) possession, and has not the defendant, by reason of the bond containing such admission, procured the coroner to re-deliver to him such property, thus taken from him ? Certainly he has. If it had not been for the bond, the property would have been delivered to the plaintiffs, in which event the defendant could have shown that the property taken was not described in the affidavit, or was not that of the plaintiff Hnder such circumstances the plaintiffs would have been compelled to prove their whole case, including the fact that the property actually taken from defendant was the property described in his affidavit and in his requisition to the sheriff.

Instead of this, however, the defendant permits the coroner to take the property without a word of denial that it was the identical property described in the affidavit and requisition, and in addition thereto he causes the bond to be executed in order to take back the property, and therein' he plainly admits that it is the same property. But now upon the trial of the case he wants-to be permitted to show that not more than one-quarter of the property that was taken was that which was described in the affidavit. To allow this is to violate the principle of the *Diossy*case, which was, that what was solemnly admitted as a fact by an admission in the bond should not be contradicted on the trial. It is also most unjust that it should be otherwise. Where property *445is taken under a requisition, and the plaintiff sees by the bond which has been executed and which by the Code is to be delivered to him by the sheriff (§ 1708), a plain and distinct admission that the officer has taken the property described in plaintiff’s affidavit and requisition, he has a right to rely on such admission and take no further steps towards proving the point as to the possession by the defendant of the very property described in the requisition. He may also give up any attempt to seek further for property which the defendant solemnly admits he is himself in possession of. Otherwise, and in just such a case as this, the defendant having obtained delivery of the property upon executing the bond, and not having made the least denial or question at the time of the taking, but that the property taken was the same as the property described in the requisition, may at once sell or otherwise dispose of it. By so doing the plaintiff is precluded from any further examination of the property, and cannot in that way strengthen his contention that it was identical with that named in the affidavit. In addition to that the plaintiff is thrown off his guard by the defendant’s conduct and admission, and naturally would not on that very account take such steps and secure such proof as might otherwise be then procured to prove his case on that point.

Upon the trial, howeVer, the defendant, notwithstanding his admission in his bond, asks to show that the property is not identical, and he thus endeavors to reap the advantage which the admission has given him, in causing the plaintiffs to rely upon the same, and to come unprepared for the trial of such an issue. Is it right that he should have such an opportunity at the plaintiffs’ expense?

The course of the trial herein shows that the plaintiffs did rely entirely upon the admission in the bond for the purpose of proving the identity of the goods taken from defendant’s possession with those described in the affidavit and requisition, and the bond was received in evidence for that purpose. If the denial had been made when the property was taken, the plaintiffs could have looked into the question more fully and have satisfied themselves either that the defendant was wrong, or, if right, could have given it up and made further search regarding the property they claimed. If they concluded to take it, and the sheriff was satisfied, then they would have been much more careful as to procuring proof of the identity of the goods claimed with those taken, and much better prepared to prove such fact upon the trial. But the course taken by the defendant wholly disarms them upon that point Assuming the truth of the admission, and that there would be no denial of the fact of identity of goods or possession by defendant, the plaintiffs might naturally and rightfully rely upon such admission as to those facts, and simply prepare themselves to prove the other material facts in the case, viz. : title to the goods that were taken, assuming them to be the goods described in the affidavit and admitted in the bond.

It is to prevent such injustice that the *Diossy*case says that the fact of the possession of the property by the defendant, *446which has been admitted in the bond, shall not be contradicted. In that case the injustice worked by the other rule would lie in permitting the defendant to show as a defense the non-existence of a fact which he has already admitted in his bond, and by reason of which he had obtained the property, while in this case the injustice would lie in permitting the defendant to contradict a plain admission in a bond, by reason of which bond the property taken from him was restored to the defendant, with all the advantages which such possession could give to him. The hardship would be with the plaintiffs to allow such proof.

If the defendant desire to raise the question of identity, he should raise it, not by admitting it in the bond and subsequently contradicting such admission, but he should either sue the sheriff for the taking or leave the property in his hands and try the case, and if successful, the property would be returned or its value ensured to him.

It is said that the recital in the bond was not necessary, as the fact is not by the statute made necessary to be stated. I do not see that that makes any difference. The bond itself is required by the statute, and in order to make it in any wise intelligible, it is necessary that some statement should be made of the purpose for which it is executed, and the recital in question was made for that purpose, and I cannot see why it should not be just as conclusive in a case where the defendant wishes to deny the possession of part of -the property, as where he wishes to deny the possession of the whole. The case of *Weber*v. Manne, 42 Hun, 557; 4 N. Y. State Rep., 497, was reversed in this court 105 N. Y, 627; 7 N. Y. State Rep., 871.

The same principle has been held in other states. In *Mead*v. *Figh,*4 Ala., 279, it was held that a bond for re-delivery of a chattel, which recited a levy and contained a promise to produce the chattel, could not be contradicted by showing that there was no such chattel and that the levy was fictitious. The court said: “The law gives the defendant a right to suspend the collection of the money upon his doing certain acts, and it could not be tolerated that he should be permitted afterwards to say that these acts are not binding on him because they assert a falsehood.”,

In *Lucas*v. Beebe, 88 Ill., 427, it was held that a party in a delivery bond, who therein admits the possession of the property, is bound by it, and if in such a bond proceedings before a justice of the peace in a certain entitled action are recited, the maker of the bond cannot contradict the recital by proof that there was no such suit. It is generally supposed, said the court, parties mean to bind themselves when they solemnly and deliberately make such statements in writing, the truth of which is attested by their signatures and seals.

In *Frost*v. *White,*14 La. Ann., 140, the same holding is maintained. Property was attached which was bonded by an intervenor, and a motion made to dissolve the attachment on several grounds, one of which was that no property was in fact attached. The court said the admission had been judicially made by giving a bond which contained a description of the property attached, and there*447fore the intervenor was concluded by his admission and estopped from denying its truth.

In *Shaw*v. *McCullough,*3 West Va., 260, the court said that parties voluntarily entering into a forthcoming bond are estopped from all inquiry into the regularity or validity of the levy of the writ of *fieri facias*upon which the bond was taken. The bond recited the fact that the writ had issued and the property had been levied on under it, and that was conclusive.

In *Schnaider Brewing Co.*v. *Niederweiser,*28 Mo. App., 233,236, the defendant offered to show that certain of the property mentioned in the requisition and recited in the bond as having been taken under it, was in fact at the time that the bond was given, and ever since had been, in plaintiff’s possession. The evidence was excluded, and the court held such exclusion to be right, because the respondents should not be permitted to contradict by oral testimony their own recitals in the bond given by them.

In *Carpenter*v. *Stearns,*32 Mo. App., 132, the court said that the defendants having availed themselves of the benefits of the statute, which allows them to keep the property on giving a bond, are estopped from showing or claiming on the trial that the property described in their delivery bond was never in their possession.

In *Hundley*v. *Filbert,*73 Mo., 34, the obligors in a delivery bond were estopped by a recital therein from showing that there was no levy upon which the property was taken.

In *State ex rel. McKown*v. *Williams,*77 Mo., 463, it was held that a recital in a bond is a solemn admission by the obligor of the truth of the facts recited, and where in an action against him the bond is pleaded in *haec verba,*the effect is the same as if there were a formal plea of estoppel. The claim was made in the above case that there was no proof that a party named was ever appointed guardian. The consideration of the bond recited that, *“*Whereas, the above Eobert H. Williams is the lawful guardian,” etc. The court said, *“*This recital is a solemn admission by the defendants of Williams’ guardianship,” and defendant was held estopped by such admission from questioning the fact.

The case of *Miller*v. *Moses,*56 Me., 128, contains nothing opposed to these views. There the plaintiff in the replevin suit, in order to get his requisition, gave a bond, and of course it was for all the property which he expected to replevy. He was beaten in the action, and the defendant in that action thereupon sued on the bond to recover damages for taking his property. It was held in the latter action that the recital in the bo nd as to the purpose for which it issued, and describing all the property claimed, did not estop the defendant in such latter action from showing as a fact that only a part of the property described therein had been subsequently taken by the sheriff. The court said in such case the bond constitutes no estoppel. It is ordinarily given before the goods are replevied. It is based upon the writ, and assumes that what is ordered to be replevied, will be. But if not found, they cannot be, and, for those that are found, the bond will be security, and for no more.

*448This is not our case. Upon the whole, both on principle and authority, we think the 'evidence was not admissible, and the referee was therefore right in refusing the defendant’s - offer to show the alleged fact

We have looked at the other questions arising in this case, and which the defendant contends were sufficient to procure the reversal of the judgment by the general term. We think there is no merit in any of them.

The general term erred in granting a new trial, and its order should therefore be reversed, and the judgment upon the report of the referee affirmed, with costs.

All concur, except Andrews, J., not voting.