#### J. F. FLOWERS, Receiver of UNITED MERCANTILE COMPANY, v. C. L. SPEARS, G. H. LOWDER and C. V. LOWDER, Copartners, Trading as LOWDER BROTHERS, and B. A. FORD.

(Filed 16 December, 1925.)

1. Evidence — Banks and Banking — Boots—Entries—Canceled Checks— Hearsay.

Where the purchaser of a truck claims title by payment by canceled check on a local bank, and thus raises this issue, it is competent for the cashier of a bank of which the payee bank was a branch, and who had supervision and control thereof, to testify that a check of the amount claimed at the time of the transaction -in controversy, was paid by the local bank in confirmation of the plaintiff’s evidence as appeared .from the book of record of the local bank, and to offer the same in evidence; and this evidence was not objectionable as hearsay on account of the witness not having personally handled the said check or made the record thereof.

2. Sheriffs — Attachment—Execution—Notification by True Owner — Sale— Damages — Title.

Where the sheriff has seized under levy of attachment personal property, and has been notified by a stranger to the action that he is the owner *748thereof and that should the sheriff sell the same it would be at his own peril, the party so notifying is not estopped to maintain his action for damages against the sheriff and the sureties on his bond, or in the proceedings, and to establish his title as a condition to his recovery.

3. Official Bonds — Actions—Parties.

One whose property has been attached by a sheriff, under a warrant issued in an action to which he is not a party, may intervene or interplead in the action and claim ownership, and obtain an order for the release of the property attached, O. S., 829, 840'; or he may bring action against the sheriff and the sureties on his official bond for the property or damages for its conversion, or against the plaintiff in the action at whose instance the warrant was issued, and the property wrongfully attached with option of joining the sheriff therein, or if the sheriff has taken an indemnity bond he may sue the obligor and sureties thereon.

Appeal by defendants from judgment of Superior Court of CabaRRUs County, April Term, 1925, *Shaw,*/.No error.

Action to recover damages for tbe wrongful conversion of a Ford truck, alleged to be tbe property of plaintiff. Said truck was levied upon by defendant, C. L. Spears, sheriff of Cabarrus County, on 7 July, 1922, under warrants of attachment issued by tbe Superior Court of said county in actions^ instituted in said court by defendants, Lowder Brothers, and B. A. Ford against Kannapolis Local Union No. 1238, Textile Workers of America, and W. G. Walter. B. A. Ford was surety upon tbe undertaking filed by Lowder Brothers, and Lowder Brothers were sureties upon the undertaking filed by B. A. Ford, in said actions. The said Ford truck was sold by the defendant, C. L. Spears, under executions issued upon judgments rendered in said actions, on 25 November, 1922, and the proceeds of said sale were applied as payments on said judgments under orders of the court. Defendants denied that plaintiff, J. F. Flowers, receiver, or that United Mercantile Company was the owner of said truck at the time same was levied upon and seized by the -sheriff.

The jury answered the issues submitted to them as follows:

1. Was plaintiff the receiver of the United Mercantile Company as alleged in the complaint? Answer: Yes.

2. Was the plaintiff the owner and entitled to the possession of the truck as set out in the complaint? Answer: Yes.

3. If so, did the defendants wrongfully convert said truck as set out in the complaint ? Answer: Yes.

4. What damage, if any, is plaintiff entitled to recover? Answer: $300.

From judgment on this verdict, defendants appealed to the Supreme Court.

*749
      *Hartsell & Hartsell for plaintiff.*

*H. S. Williams for defendant.*

CoNNOK, J.

Tbe United Mercantile Company, a corporation, was organized on 2 April, 1921; thereafter, and until 24 July, 1922, when plaintiff, J. F. Flowers, was appointed receiver of said company, by tbe Superior Court of Cabarrus County, it was engaged in tbe mercantile business at Kannapolis, N. C.

There was evidence tending to show that on or about 14 April, 1921, said company bought from E. M. Housel a Ford truck, paying therefor $701.66. Mr. Housel testified that this sum was paid to him at the time he delivered the truck to the company. C. W. Swink, cashier of Cabar-rus Savings Bank, identified a sheet of paper handed him, while testifying as a witness for plaintiff, as the sheet from the bank’s ledger upon which the account of the United Mercantile Company was kept by the said bank. He was requested by plaintiff’s attorney to state whether or not said sheet showed that a check for $701.66 was charged on said account. Defendants objected. Before complying with said request, in answer to questions of defendants’ counsel, witness stated that he did not make the entries on said sheet; that they were made by a bookkeeper, employed by said bank at its branch at Kannapolis; that witness went occasionally from his office at Concord to Kannapolis and there examined the branch bank, and looked over its business; that the sheet shown was a part of the bank’s records. Defendants’ objection was overruled. The witness then stated that the sheet showed that a check for $701.66 was charged on 15 April, 1921, to the account of the United Mercantile Company. Defendant excepted. Plaintiff then offered the sheet in evidence for the purpose of corroboration. Defendants’ objection was overruled and defendants excepted.

Defendants’ assignments of error based on these exceptions cannot be sustained. E. M. Housel had testified that he received the sum of $701.66 at the time he delivered the truck to the United Mercantile Company. This testimony was offered as evidence that the United Mercantile Company paid the purchase price for the Ford truck. It was competent for that purpose. The issue submitted to the jury involved the ownership of the truck. The testimony was relevant as evidence upon the question of ownership. The testimony of the cashier of the bank was competent as evidence that the sheet exhibited to him was a part of- the records of the bank. See *S. v. Hendricks,*187 N. C., 327.

The fact that the cashier did not make the entries in the account shown on the sheet did not render his testimony incompetent. The entries were made by a bookkeeper, employed by the bank, who was under the supervision of the cashier. The fact that the cashier did not *750personally handle the check and that he had no personal knowledge of the transactions recorded in the account, as shown by the sheet, did not render his testimony incompetent as based upon hearsay. *Ins. Co. v. R. R.,*138 N. C., 42; *Currie v. Davis*(S. C.), 126 S. E., 119. In both these cases, a record containing entries made in the usual course of business on train sheets by a train dispatcher, who testified as a witness, from reports telegraphed to him by station agents as to the arrival and departure of trains at their stations, was held competent evidence for the purpose of showing the position of a train at a certain time. In the instant case while the entries were not made by the cashier, they were made by a bookkeeper under his supervision and were accepted as correct by both the bank and the United Mercantile Company in their dealings with each other.

Nor does the testimony violate the well established rule that a litigant cannot be affected by the words and acts of others with whom he is in no way connected, and for whose sayings and doings he is not legally responsible. 22 C. J., 741. The record was offered not as evidence against defendants, but in support of the testimony of witnesses for plaintiff. In *Falls v. Gamble,*66 N. C., 455, this Court held that evidence in regard to entries on a school register, offered for purposes of corroboration, of testimony as to the age of the grantor in a deed, was competent, *Chief Justice Pearson*saying: “The rule, *res inter alios acta,*has no application.” 22 C. J., 743. *S. v. Morris,*84 N. C., 756.

Defendants in their answer, by way of further defense to plaintiff’s cause of action, allege “that the officers and representatives of said United Mercantile Company and *J.*E. Flowers, the attorney and now receiver of said company, knew or by the exercise of due and reasonable care and diligence could have known of all the proceedings had in the said cases *(i. e.,*the actions brought by defendants in which warrants of attachment under which the sheriff levied upon said truck as the property of Kannapolis Local Union No. 1238 and *~W.*G. Walter were issued) of the time and place of sale of said Ford truck, since the time and place were widely and extensively advertised and that they at no time made and filed any protest or objected to the sale of the said Eord truck.”

Upon the trial, defendants tendered as issues, in addition to those submitted by the court, the following:

> “1. Is the plaintiff, by reason of his conduct and the conduct of the officers and representatives of the United Mercantile Company, estopped from maintaining this action against the defendants?

> “2. Did the plaintiff, by his own acts and conduct and the acts and conduct of the officers of the United Mercantile Company, waive any *751claim be might have bad to maintain an action for damages for and on account of tbe seizure and sale of said truck?”

Tbe court refused to submit these issues and defendants excepted and assign such refusal as error.

Tbe warrants of attachment were issued on 7 July, 1922; on tbe same day defendant, C. L. Spears, sheriff, levied upon tbe Ford truck as tbe property of tbe defendants in said -actions, to wit, Kannapolis Local TJnion No. 1238 rand W. G. "Walter; on 10 July, 1922, J. E. Flowers wrote to tbe sheriff advising him that be represented tbe United Mercantile Company and that tbe truck which be bad seized was tbe property of said company and not tbe property of defendants in said action; be demanded tbe release of said truck from tbe levy and notified tbe sheriff that tbe United Mercantile Company would insist upon its rights as owner of tbe said truck.

Neither of tbe defendants in said actions filed answer, and on 4 September, 1922, judgment was rendered in each action in favor of tbe plaintiff therein and against 'the defendants for tbe amount claimed, it was further adjudged that tbe Kannapolis Local Union No. 1238, Textile Workers of America and W. G. Walter were tbe owners of tbe truck and other property attached by tbe sheriff; thereafter executions were issued upon said judgments and on 25 November, 1922, tbe sheriff under said executions sold tbe said truck at tbe courthouse door in Cabarrus County.

On 14 July, 1922, J. E. Flowers was appointed receiver of tbe United Mercantile Company by tbe Superior Court of Cabarrus County. Neither be nor anyone else representing tbe United Mercantile Company attended tbe sale of .the said truck on 25 November, 1922.

Tbe assignments of error based upon exceptions to tbe refusal of tbe' court to submit tbe issues tendered by defendants cannot be sustained. No facts are alleged in tbe answer sufficient to support tbe defense that plaintiff was estopped or bad waived bis right to maintain this action, upon an allegation that be, as receiver of tbe United Mercantile Company, was tbe owner of tbe Ford truck, at tbe time it was seized and also at tbe time it was sold by tbe sheriff. Nor was there evidence from which .the jury could find such facts. There is no contention that plaintiff was estopped by tbe judgments rendered in tbe actions, in which neither be nor tbe United Mercantile Company was a party. It is contended, however, that be is estopped because, with knowledge that tbe sheriff bad seized said truck under tbe warrants of attachment, be did not intervene or interplead in tbe actions, and claim tbe truck as bis property, and that by bis failure to do so, prior to tbe sale, which bad been extensively and widely advertised, be bad waived tbe *752right to assert bis ownership- of the truck in an action to recover damages for conversion. These contentions are not well founded.

One whose property has been attached by a sheriff, under a warrant issued in an action to which he is not a party, may intervene or inter-plead in the action, and demand judgment that he is the owner of the property, and an order directing the sheriff to release the property, C. S., 829-840. Or he may bring an action against the sheriff and the sureties on his official bond for the property or for„ damages for its conversion. *Stein v. Cozari,*122 N. C., 280. Or he may bring an action against the plaintiffs in the action, at whose instance the warrant was issued, and the property wrongfully seized, joining the sheriff as a defendant or not as he sees fit; if the sheriff has taken an indemnity bond, he may sue the obligor and the sureties on such bond. *Tyler v. Mahoney,*168 N. C., 237; *Martin v. Buffaloe,*128 N. C., 305; *Gay v. Mitchell,*146 N. C., 510; *Latham v. DeHart,*183 N. C., 657. Plaintiff, as attorney for the United Mercantile Company, upon learning that the sheriff had levied upon and seized the truck, promptly wrote to the sheriff, advising him that this truck was the property of his client, and not of the- defendants in the actions in which the warrants of attachment were issued. He warned the sheriff that his client would hold him liable for the seizure. The sheriff retained the truck and sold it, under the executions, at his peril. There is no evidence of any intention on the part of plaintiff, or of the United Mercantile Company prior to his appointment as receiver, to relinquish claim of ownership of the truck. There was no waiver of right to maintain this action, *Mfg. Co. v. Building Co.,*177 N. C., 107. There was no error in declining to submit the issues tendered by defendants.

We have examined the assignments of error based upon exceptions to instructions of the court to the jury. The controversy between the parties to this action involved the ownership of the Ford truck. This controversy was determined by the jury’s answer to the second issue. The jury having found that plaintiff was the owner of the truck, as alleged in the complaint, upon the admission in the answer and upon all the evidence there was a wrongful conversion, for which all the defendants are liable to plaintiff. There was no exception to the evidence, or to the instructions relative to the issue as to damages. The judgment must be affirmed. There is

No error.