#### Henry A. Williams *versus*Oliver M. Lowndes, Sheriff, &c.

April Term, 1829.

Where the sheriff has endorsed upon an execution the day and hour when it was received, the endorsement is conclusive evidence of the fact, that the execution was in his possession at that time ; and when he has assumed to act under it, he cannot compel the creditor, who has sued him for a false return, to prove at the trial the identity of the execution, either by witnesses or collateral testimony.

Where goods are in the hands, and under the controul, of the defendant in the execution, and they are pointed out as his property to the sheriff by the creditor, the Sheriff is bound to levy upon them, without an indemnity; and if he neglect to do so, and the goods are afterwards removed beyond his reach, by the defendant in the execution, he will be answerable to the creditor for his neglect.

If, after a levy, a claim to the goods be interposed by a third person, the sheriff may then demand an indemnity before he can be compelled to proceed further ; and his regular course would be, to call a jury *de proprictate probandi.*If he make the levy and follow this course, he will not be liable for a trespass, and the parties claiming the goods may be compelled to litigate their claims, and decide the question of property, before the sheriff can be compelled to make his return, or proceed to a sale.

Quiere. Whether the deputy, who makes the levy can be compelled to testify as to the identity of the execution, in an action against the sheriff for a false return; and whether he be not incompetent as a witness, for any purpose connected with the action ?

The property in goods in a store, conveyed to a third person by an instrument of assignment, dated after the docketing of a judgment against the assignor, and left in his hands, without any good reason shewn therefor, does not pass to the assignee, and the assignment itself is fraudulent and void. The presumption, in such cases, is, that the assignment was made to defeat the judgment, and it will not be upheld.

This was an action on the case, for a false return on a writ of *fieri facias,*at the suit of the plaintiff, against one Samuel B. Hiclccox. The declaration contained two counts. The^rst *count*stated, that the plaintiff obtained a judgment in the Supreme Court of this state, at the term of October, in the year 1826, against Samuel B. Hickcox, for $10,000 of debt, and $17.13 cents costs; that afterwards, to wit, on the 20th of October, 1826, a writ of *580*fori facias*was issued thereon, directed to the sheriff of the city and county of New-York, returnable on the third Monday of February; 1827, on which there was an endorsement, directing the ghgpjjf ]eVy aD(j collect $969.98, with interest thereon from the 16th day of December, 1826, besides the sheriff’s lees, &c. which writ, so indorsed, was afterwards, to wit, on the 29th day cl December, 1826, delivered to the defendant in this suit, to be executed in due form of law ; that by virtue of said writ the defendant after-wards, to wit, on the same 29t.h day of December, 1826,siezed and levied upon divers goods and chattels of the said Samuel B. Hick-cox, within the said city and county of New-York, sufficient to satisfy said execution ; but the defendant had not the monies required to be levied by virtue of said writ, before the said Supreme Court, at the return day thereof, and at the return day the defendant falsely returned to the Supreme Court upon said writ, that said Hickcox had no goods or chattels in his bailiwick, &c.

The *second count*stated the judgment andji. *fa.*as before : and that Hickcox had goods and chattels, on v Inch the defendant might have levied, &c., but that the defendant, being sheriff, &c., neglected to sieze and take the same, and falsely returned that said Hickcox had *no*goods or chattels, &c.

The defendant pleaded the general issue.

This cause was originally commenced in the Supreme Court, but by consent of parties, was transferred to this court, and brought to trial before Mr. Justice Hoffman and a jury, on the first day of December, 1828.

On the trial, the plaintiff offered in evidence, an exemplified copy of a judgment in the Supreme Court, in favour of himself against Hickcox, for $10,000, of debt, *and*$14.29 *costs,*entered upon a bond, warrant of attorney and plea of confession ; and docketed on the 16th day of December, 1826. The plaintiff also offered in evidence an exemplified copy of a writ *oi fori facias,*upon a judgment in favour of himself against the said Hickcox, in the same court, and of the same date, for $ 10,000, of debt and $17.13 costs, *(the plaintiff’s and defendant’s costs of entering up the*judgment on warrant of attorney being both included in the *fori facias,)*tested the 8th day of October, 1826, and returnable *581on the third Monday of February, 1827, with directions endorsed, to levy $952.85 of debt, and $17.13 costs, with interest from the 16th day of December, 1826, besides fees and poundage- On the *fieri facias*appeared the following endorsements, viz. “ *Rec’d.*11 *Dee. 2Qth,*1826, ai 12 *o’clock, at*noon—no goods, chattels,lands or “ tenements.—O. M. Lowndes, sheriff. (Filed 7th April, 1827.”) The counsel for the defendant here raised an objection on the ground of variance ; the amount of costs mentioned in the record of judgment and the *fieri facias*not being the same. This objection however was overruled by the Judge, and the record and *fi. fa.*were admitted in evidence accordingly.

The plaintiff then called one Decius Rice as a witness, who testified, that he was a clerk in a retail dry goods store of *Samuel B. Hickcox,*No. 121 Chatham-street, in the city of New-York, from July, 1826, till the 1st of January, 1827; that on Saturday, the 30th day of December, 1826, about noon, *Jacob Westervelt, a lenown and reputed deputy of the defendant,*came into the said store in company with Trueman Roberts; and Westervelt then told the witness that he had an execution against the property of Hickcox, and requested the witness to send for him, as he was not then in the store; and the witness accordingly requested one Joseph Hopkins to go for him. *Roberts soon after left the store, and went aviay;*but the deputy sheriff remained there about an hour, and then Hickcox came in. The deputy then told him that he had an execution against his property; upon which Hickcox stated to the deputy, that he had assigned all the goods in the store to one *Frederick A. Stewart,*and that the goods all belonged to him. He further testified, that while the deputy sheriff remained in the store, he (the witness) continued to sell and deliver parcels of the goods to customers as usual, to which the deputy made no objection. That at the time when the deputy sheriff entered the store, there was a sign-board over the outside door, on which was the name of Hickcox; which sign had been there during all the time of his clerkship. He further testified, that the said deputy left the store without making any inventory, or giving any directions concerning the goods; and the store was dosed that night by the witness as usual, it being Saturday night. *582There were then in the store goods of the value of $1500 and upwards; but on the Monday next following, he found that the g00t[g had ap been removed. In about six days thereafter, the witness and Hopkins, at the request of Hickcox, went, with him to a store in Grand-street, where Hopkins and the witness, at the request of Hickcox, took an inventory of the *same*goods, and delivered it to Hickcox. He knew not what became of these goods, except that about a month afterwards, he was employed by Hick-cox to carry about $100 or $200 worth of the same goods and pledge them to the Lombard Association, in order to raise money for him, which service the witness performed accordingly. He never heard of any claim or right of Stewart to said store of goods, until *after the deputy*sheriff came with the execution, and he continued to act as clerk to Hickcox, and to sell the goods in the store, from the 24th to the SOth December, 1826, inclusive, as he had done before, without any knowledge or information of said assignment. •

The counsel for the defendant then objected, that the plaintiff had not given any evidence to show, that the execution so proved to have *been in*the hands of the deputy sheriff, was the *same*as that given in evidence in this cause; but it was insisted by the plaintiff’s counsel, that the evidence was *prima facie*sufficient on that point. The presiding Judge decided, that the plaintiff was hound to give further evidence as to the *identity*of the writ of *fieri facias;*to which ruling the plaintiff’s counsel excepted.

The plaintiff then called the said Frederick A. Stewart, who was asked, whether the deputy sheriff, between the issuing of said execution and-the return day thereof, had not declared, that he had in his hands an execution at the suit of the plaintiff in this cause against Hickcox *1 To*which he answered, that he understood from the deputy, that Trueman Roberts was the party, who claimed the benefit of that execution, and he did *not*hear the name of Henry A. Williams mentioned.

■ The plaintiff then called Jacob Westervelt, the said deputy sheriff as a witness, to prove the *identity of the execution;*that is, to prove that *thefi.*/«. given in evidence, was the same with that, which he had in his possession when he entered the store of Hick-*583cox, on the 30th December, 1826, as stated by the witness, Rice.

The defendant’s counsel then made a preliminary inquiry of Westervelt, who testified, that he was a deputy of the defendant during the whole time, from the teste to the return of said execution ; that, as such deputy, he had given a *bond of indemnity to the defendant, as his principal in the office of sheriff,*which was then in full force, and so continued. That he was the real party defen 1 ant, and had employed counsel to defend this suit, and was bound to pay all damages, which might be recovered against the defendant; and he objected to answer, as a witness, to the inquiry proposed to be made by the plaintiff, on the ground, that he was the real party defendant in interest, and also, that his answer might establish, or tend to establish, that he was liable to a civil suit, under his bond of indemnity to the defendant. The Judge overruled this objection, and decided, that the witness was bound to answer the question, and the counsel for the defendant excepted to his opinion on that point. The witness then testified, that he had in his hands the writ *oí fien facias*produced at the trial, at the time when he entered the store of Hickcox, as testified to by Rice. That one Trueman Roberts claimed to be the assignee of said judgment, and went with the witness on that occasion, to the store, and directed the levy of the execution on the goods. He further stated, that when he was on his way to execute said writ, he mentioned to Roberts, that if any claim should be made to the goods, in opposition to the execution, he should require an indemnity from the plaintiff; to which Roberts answered, that a bond of indemnity should be given during the then next week, if required. He further stated, that on Friday, the 6th day of January, 1827, he saw the bond of indemnity on file in the sheriff’s office ; which bond was produced by the defendant at the request of the plaintiff. He also testified, in answer to questions put by the "defendant’s counsel, (and which were objected to by the plaintiff, on the ground of bis interest,) that *on the 6th of January,*1827, the defendant delivered the bond of indemnity to the witness, and directed him to inquire as to the sufficiency of the obligors ; that, he made inquiry, and was informed, that they were *584not good, and he so reported to the defendant; but that no notice thereof was given, nor was any objection ever made to any person, to his knowledge, as to the insufficiency of the obligors. He further testified, in answer to an inquiry made by the defendant’s counsel, (which was objected to by the plaintiff’s counsel, on th.e ground of his interest,) that the goods were removed from the store of Hickcox, in the night of Monday the 1st day of January, 1827, vvithout his knowledge or consent. Upon a like inquiry by the defendant’s counsel, and on a like objection by the plaintiff’s counsel, Westervelt also testified, that after the witness went to the store of Hickcox with the execution, on the 30th December, 1826, Stewart came there in company with Hickcox, and Stewart then claimed the goods by virtue of an assignment from Hickcox to him.

The plaintiff then gave in evidence, the bond of indemnity to the sheriff executed by the plaintiff and Roberts, and rested his cause.

The defendant’s counsel then gave in evidence, an instrument of assignment from Hickcox, in the words and figures following, to wit: “ Whereas, I am indebted to Frederick A. Stewart, of the “ city of New-York, in the sum of *one thousand dollars,*lawful “ money, of the state of New-York, for cash advanced to, and for “ me, by him, and whereas, I am anxious to pay or secure the “ payment of the same to him : Now, Know all men by these “ presents, that I Samuel B. Hickcox, of the city of New-York, “ for the final payment of the said one thousand dollars, so far “ forth as I am able, ds hereby assign, transfer and *deliver*to the “ said Frederick A. Stewart, all of the goods, chattels, furniture, “ and other personal property now in the store, known as number “ one hundred and twenty-one, Chatham-street, in said city of 11 New-York, and also the goods, chattels, and furniture, situate “inthe house, number eleven Reed-street, in said city, hereby “ giving the said Frederick A. Stewart, full power and authority “ to sell and dispose of all of the said goods, chattels, and furni- “ ture, and from the proceeds thereof, I do hereby authorize him, “ the said Stewart, to retain a sum sufficient to pay and satisfy “ the said one thousand dollars, and the balance, should any re- *585“ main in his hands, I do hereby authorise the said Stewart to “ retain,in his hands, *for the benefit of my creditors generally,*to “be paid to them, in proportion to their respective debts or de- “ mands; and I do hereby authorise the said Frederick A. “ Stewart, to sell the same at private or public sale, as he may “judge best, for the promotion of the above object. In witness “ whereof, I have hereunto set my had and seal, the *twenty-fifth*“ *day of December,*1826.

(Signed) “Samuel B. Hickcox. [l. s.j

“ In the presence of)

J. B. Stewart.” )

The only proof of the assignment, was derived from the evk dence of Thomas Drumgold, who testified, that J. B. Stewart, the only subscribing witness, was dead, but that his name as a subscribing witness to said instrument, was in the proper handwriting of the said J. B. Stewart. The defendant’s counsel also proved, that at the date of said assignment, Hickcox was indebted to Stewart in about the sum of $700.

The defendant then called a witness, who testified, that in January, 1827, Trueman Roberts and Samuel A. Williams, the obligors, in said bond of indemnity, resided in the city of New-*York;*that Williams was then reputed to be insolvent: and that Roberts was a merchant in good credit, although he had, some time before, been connected with a house that stopped payment.

The defendant then called Westervelt again, and inquired of him as to the solvency of the said obligors; to which inquiry the plaintiff objected, on the ground of interest in the witness, but the objection was overruled; and the witness answered, that at the period of the giving of the bond of indemnity, he made inquiry by direction of the defendant, as to the solvency of the obligors, and was informed that Williams was reputed to be insolvent ; and that Roberts was embarrassed and of doubtful credit.

It was then agreed, that a' verdict should be entered for the plaintiff, subject to the opinion of the court upon a case to be made ; and the Judge, thereupon, charged the jury, that they h>d *586a right, in their discretion, to allow interest upon the sum claimed, or not, as they thought proper, under the circumstances of the case ; and the jury found a verdict foi the plaintiff for the sum of $969.98 damages, that being the amount directed to he levied on the execution, without interest.

• The cause was argued by *Mr. J. Platt*for the plaintiff, and b3r *Mr, Slosson*for the defendant.

*Mr. Platt*contended,

I. That the variance between the'judgment and *thefieri facias,*in the amount of costs, was immaterial, and that the objection was properly overruled. In *Bissell v. Kipp,*[5 *John.*89.] in an action for an escape, there was a variance in amount between the judgment and the *ca. sa.*and the court held, that “ process was “a sufficient warrant for the sheriff; and that he could not take “ advantage, of the defect in" this collateral way.”

It being a judgment on bond and warrant of attorney and cognovit, the mistake is *formal*merely, and not. a.matter of substance. The defendant’s, as well as plaintiff’s costs, were recoverable out of the penalty, and properly collectable on *the fi.fa.*In *Mills v. McCoy & Wife,*[4 *Cowen,*406.] the court said, “if “a variance be substantial, and such as could not be amended,” the objection did not come too late, although made after summing up to the jury : but “if it was *merely formal,*the objection “ in any stage was good for noihiug.”£;That was a variance in the i'seoui too, which was held not material in substance, and overruled.

The rule is, that whenever the error is *amendable,*the mistake cannot be taken advantage of in thisjcollateral way; unless the proceedings were set out in *hmc verba*in the pleadings; which is not the case here. [Rees *v. Overbaugh,*4 *Cowen,*124.,] *Lion ex Dem. Eden v. Burtis,*[18 *John.*510.]

If the'defendanfffin the original suit, has waived error or irregularity in the judgment or execution, the sheriff is justified, in executing the process, and shall not be allowed; to question it in *587action for an escape or false return. [*Jaques v. Cesar, 2 Saund.*101 *(a.) Jones v. Pope,*1 *Saund.*38, Note 2. *Bull v. Steward, 1 Wils.*255. *Bently v. Donnelly,*8 D. & E. 127.]

II. The sheriff’s endorsements on the *fi. fa.,*“ Received “December 29th, 1826,” and “No goods, chattels, lands or “ tenements,O. M. Lowndes sheriff,” were sufficient and conclusive to prove, that this execution was in the sheriff’s hands on the 30th December, when it is proved that Westervelt, the deputy, was requested by *Roberts,*(the assignee of the judgment,) to levy on the goods of the defendant in that execution. It also appearing, that *the fi. fa.*was returned and^“ filed on the 7fh April, 1827,”—it must, therefore, have been in the sheriff’s hands on the thirtieth December, one thousand eight hundred and twenty-six, when the deputy ought to have levied on the goods pointed out to him; and it is immaterial whether the deputy had the execution in his own hands, or whether it lay in the sheriff’s office; his powers and duties were the same in either case. The ruling of his hon-our, the Judge, requiring further proof of the identity of the execution, under which the deputy acted, was erroneous; and the plaintiff had completely made out tris case, independent of the testimony of *Westervelt,*the deputy.

Executions in the Supreme Court are, almost necessarily, sent by letter to the sheriffs throughout the state; and if the endorsement *required by law,*as to the time of its coining into the sheriff’s hands, is not to be evidence against the sheriff) *as to that fact,*the object of the law would be defeated, and suitors would be subjected to extreme hardship and inconvenience.

Here we prove by the indorsement, that the sheriff had this execution on the 29th December, 1826 ; and. that the next day his deputy, under the direction of the plaintiff, (the assignee of the judgment,) went to the store of the defendant in that execution, for the purpose of executing a *fi. fa.*on the goods of that defendant; is not the inference irresistable, that the deputy assumed to act* under *this execution,*there being no evidence of any other *1*

*588III. *Westervelt*was legally required to answer to the question put to him by the plaintiff’s counsel, as to the identity of the execution, which was explained by the plaintiff’s counsel, to be the only object of inquiry on his part.

In *Lord Mellville’s Case,*in the House of Lords, it was decided, (upon the opinions of the Lord Chancellor, and eight Judges against four Judges,) that “ a witness cannot by law refuse to “ answer a question relevant to the matter in issue, (the answer- “ ing of which has no tendency to accuse himself, or to expose ■“’him to penalty or forfeiture of any nature whatever,) on the “ ground that the answering of such question may establish, or ‘‘ tend to establish, that he owes a debt, or is otherwise subject to “ a civil suit.” [1 *Phil. Ev. 208. 1 Am. L. Journal, 228. Anthon’s N.*P. 101. *Note.]*

The rule is founded in justice,convenience and wisdom. If it it be decided, that Westervelt is *not compellable*to answer to that inquiry at law, the plaintiff would have an unquestionable right to his answer, on a bill of discovery, to be used in this suit, (the sheriff also being made a party to such bill;) and *cui bono,*put the plaintiff to this circuitous and expensive mode of obtaining his testimonjr *1*He is not a party to the record; and why allow him the technical privilege *1*

The cases of the *People v. Irving,*[1 *Wendell,*20.] and *Mauran*v. *Lamb,*[7 *Cowen,*174.] are distinguishable from the present case.

Those cases decide, that the *real and immediate parly in interest,*though not a nominal party on the record, is privileged from being a witness against hie immediate interest.

Here *Westervelt*swore, that he was “ the real party defendant,” and that he was “ bound to pay all damages, which may be re- “ covered in this suit.” But it must be remarked, that the witness here improperly swears to *inferences of law,*which proves nothing. The question is for the *court,*upon the *facts*disclosed, whether . *he*is, in judgment of la tv, the real and immediate party defendant. He is not the real defendant in fact, although the recovery in this suit, may *consequentially,*subject him to an action by his principal. A new suit or action must be brought between different *589parties, in order to subject the deputy sheriff. There is a difference between a party having an interest as *plaintiff,*or as *defendant.*The cases above cited, *(in Cowen and Wendell,)*were of the former description. The assignee of a bond, though not a party on the record, will be regarded by courts of law, as the *actual plaintiff*fot any purpose. But a court of law never can recognise any person as actual defendant, except the defendant on the record.

IV. The assignment by *Samuel B. Hickcox,*(the judgment debtor,) to Frederick A. Stewart, dated 08th December, 1806, was *fraudulent*in *fact*and in *law,*as against the plaintiff, whose judgment was docketed on the 16th December, *1826.*

There is no colour for the proposition, that this assignment was in the nature of a mortgage, and therefore consistent with the continued possession of the goods in the vendor or mortgagor.

According to the terms of the assignment, the goods were to have been *delivered*to the assignee, to be sold by him, and accounted for, to the vendor. The value of the goods in question, besides the furniture, &c., in the house, is proved to exceed *double the amount*of the debt due by the vendor to the vendee ; the goods were supposed to remain in the store of the vendor five days after the -pretended date of the assignment; during which time, the vendor and his clerk, (who never heard of the assignment,) were making hourly sales, as in a common retail store of drygoods; and not a single act of claim or ownership on the part of the vendee was ever heard of, until about one hour and a half after the deputy went to the store, and announced the execution. There is no proof *when*the assignment ’was in fact made ; and there is reasonable ground to believe, that" it was in truth-made after Stewart heard of the execution, and was ante-dated.

That it was intended as a mere shield of the property, is evident from the fact, that even after *thefi.fa.*was known to Stewart, he permitted the vendee(Hickcox,) to keep possession of the goods, and to convert them to his own use. In fact, the goods have not been sold and applied on the execution, nor have they gone to Stewart; the debtor (Hickcox,) has pledged them in part ■to raise money, and kept the residue.

*590As further evidence of fraud in the assignment, it is to be remarked, that it purports to be a sale, at random and in gross, of all “the goods, chattels, furniture and other personal property in (he “ store No. 121 Chatham-Street,” and also “ the goods, chattels “ and furniture inthehouseNo. 11 Pearl-Street,” without, inventory, valuation or description. ■ It was a *secret*assignment ; it was coupled with a trust; and there is every badge of fraud which existed in *Twine’s case.*

V. The deputy sheriff has no excuse for his omission of duty, and appears to have connived at the fraudulent designs of *Stewart*and *Hickcox,*in allowing the goods to be removed without any exertion of authority- by him, under the execution, after the plaintiff had conducted him to the store, and pointed out the goods then in the unequivocal possession of *Hickcox.*What could a vigilant creditor do more *1*The deputy saxv the clerk of Hickcox selling part of the goods to customers, while he stood there with the execution in his hands, and did not even forbid it: and this was before any claim was made by Stewart.

VI. Finding the goods in the *possession of Hickcox,*(the defendant in the execution,) it was the duty of the sheriff to levy on, and inventory them. If they were claimed by a third person, he might have protected himself by an inquest *de proprietate probandi,*so as to justify a return of *nulla bona,*if the property was found in the claimant.

All this he totally neglected. He took no inventory, made no levy, and took no possession or charge of the goods; and the second night afterwards, they were secretly removed by Hick-cox.

In *Bayley v. Bates,*[8 *John.*185.] it was decided, that an inquisitionfinding the properly in a stranger, will justify the sheriff in returning *nulla bona,*if there be no collusion. But if adequate indemnity be tendered, the sheriff is still bound to sell the property. Such indemnity was given and accepted, xvithout objection as to time or sufficiency.

*591it is true, the defendant attempted to prove that the bond of indemnity given by the plaintiff) was insufficient : but the *only competent*witness, *James Mabbett,*(defendant’s own witness,) testified, that the surety *Roberts*was at that time a merchant in this city, in good ciedit.

This pretence of insufficiency was an after-thought, and a mere subterfuge. The goods were secretly removed, and put out of the reach of the execution, on the night of Monday, the first of January, one thousand eight hundred and twenty-seven : and no inquiiy was made, as to the sufficiency of the bond, till Friday the sixth of January, one thousand eight hundred and twenty-seven,

Bui, if the bond of indemnity were deemed insufficient, the sheriff was bound to speak, or to give notice to the plaintiff or his attorney, both residing in this city.

The truth is, the deputy sheriff determined not to execute the *fi. fa.*on these goods ; and must be presumed to have been indemnified, for adopting that course. But if not so, the plaintiff ought not to suffer for the negligence or folly of that officer.

VII. The testimony of *Wesieroelt*throughout, was improperly admitted *agamst*the plaintiff, on the new point of inquiry, on the part of the defendant; because the witness was clearly interested against the plaintiff, and could not, therefore, be a witness for the defendant.

This testimony, if anywise material, ought to be stricken out of the case, (having been objected to at the time,) excepting only so far as it relate 1 to the point of inquiry on the part of the plaintiff; to wit, the identity of the execution.

VIII. If the court should be of opinion, that *Westervelt*was improperly admitted as a witness for the plaintiff; yet, inasmuch as it appears that the plaintiff had completely proved his case, as to the identity of the execution, before *Westervelt*was called for that purpose, the plaintiff is entitled to judgment upon the verdict, notwithstanding the supposed error of the Judge in compelling him to answer.

*592It being a verdict, subject to the opinion of the court upon the case, the court are to perform the office of the jury, as to every matter of fact, except the amount which is ascertained and fixed by the verdict.

If the plaintiff be mistaken' in these positions, there must be a new trial, to enable him to supply the supposed deficiency of proof, arising from the exclusion of Westervelt’s testimony, with costs to abide the result.

*Mr.*Slosson, for the defendant, contra, contended,

I. That the deputy sheriff was improperly compelled to testify. He considered this a case, where the defendant would be justified in protecting himself by all the rules of law, in their strictest application.

The question is, whether *a party in fact,*can be compelled to testify; for such is Westervelt. He testifies, that he is the real party defendant; that he has given a bond of indemnity to the sheriff, and that he has employed counsel to defend his cause. Were he a party upon the record, he could not be a witness, much less could he be *compelled*to estify. [7 *Cow.*174. *Mauran v. Lamb.*13 *East, referred to in*1 *Wend. The People v.*Irving.]

Where a corporation is a party, you cannot compel a corpora-tor to testify, although his name does not appear upon the record. But he is a party in fact, and no person who is the actual defendant, can be compelled to testify against his wishes or his interest. *[Frear v. Evertson,*20 *Johns. R.*142.] A defendant may call a plaintiff as a witness, if he will run the hazard of his testimony, and if he be willing to be examined. But he cannot be compelled to testify against his will. If he could be thus compelled, then the rule ought to be reciprocal. If he can be called *against*his interest, then he ought to be permitted to volunteer in favour his interest. This would subvert all the rules of evidence, and let in interested witnesses.

In this case, if the sheriff be liable, then the deputy is answerable over to him, and from the records of this trial, facts may be brought forward, sufficient to convict the deputy in the action of *593the sheriff against him. Every thing which he swears to is conclusive against him, but those facts material to his defence are excluded. Here the identity of the execution was not proved, and could not be proved, but by the evidence of Westervelt. I waive the point of the variance between the judgment and the *ft. fa.,*at this time, because it is sufficient for this cause, to exclude the evidence of Westervelt. The witness, Stewart, does not identify the execution, and there is no evidence, therefore, to support the declaration. Upon this point, we are confident, the plaintiff must fail.

[Hoffman, J. At the trial, it struck my mind forcibly, that the deputy sheriff ought not to be permitted to shield *his*principal, by refusing to testify, and this from reasons of public policy.

*Slosson.*The plaintiff himself, however, objects to the witness the instant he makes one step beyond the line to which he wishes him to *advance;*he is a competent witness, it seems, to prove the identity of the execution, but he is incompetent to show the insolvency of the obligors of the bond ! The plaintiff’s own objection proves the correctness of the position we assume by the sanction of the law.]

II. We contend, in the second place, that the deputy was excused, under the circumstances of this case, from making the levy. Roberts claimed to be the assignee of the judgment, and the real party in interest. He went with the deputy when the levy was to be made, and the latter then told him expressly, that if the goods were claimed by another person than the apparent owner, he should require a bond of indemnity, to protect him against the consequences of the levy. The fact that an assignment of the property had actually been made, was communicated as soon as they entered the store, and yet no bond of indemnity was offered. . Roberts, it is true, liad previously promised to furnish a bond, if one should be required; but, in point of fact, it was not forthcoming until the sixth of January, and before that time, Hickcox, without the knowledge of the deputy, conveyed the goods beyond his knowledge and reach. The pretext of *594collusion is wholly unfounded; for the deputy could have no *object*in preventing a successful levy. He is an officer responsipig |n himself9 and under bonds for his official good conduct. There is no ground, therefore, for the charge made, or for any imputation against the officer’s fairness.

The sheriff was not bound to become a trespasser. He acts in the character of an agent, and like other agents, is bound *to*exercise all reasonable care and diligence. But if he discharge his duty, then, like other agents, he is protected. *[Bayley v.*Bates, 8 *J. R.*185. *Townsend v. Phillips,*l0th Ib. 98.] An inquisition, it is true, shows good faith on the part of the sheriff', but he is not bound to exercise any thing more than ordinary diligence. *[Van Cleef and others v. Fleet,*15 J. *R.*147.] In this ease, the inquisition found that the property was not in the debtor, but the court held, that if the plaintiff would *indemnify*the sheriff, he was, in *such case,*bound to make the levy. The principle is, that the sheriff is not bound to incur a risk. He Would not be bound to *sell*without an indemnity, then why should he seize, and thus become a trespasser *%*

In the principal case, there was no inquisition, neither was there an indemnity proffered or furnished in time, and the sheriff] therefore, was not bound to levy.

Suppose the sheriff had taken the goods, would he not have been liable as a trespasser *1*The cases answer that question in the affirmative. [2 *Dun. Prac.*792-3. 4 *T. R.*633. 6 *Cow. R. 467. (in a note.)]*Where it is agreed, that the giving of the indemnity shall be *suspended,*that is tantamount to a release of all claim upon the sheriff", until the indemnity is furnished.

■ But here, when the indemnity was offered, the goods were withdrawn, and so no levy could be made. The indemnity itself was insufficient, as the principal was insolvent, and the credit of the surety was doubtful. The giving of the indemnity was in itself a mere after-thought, and it imposed no duty upon the sheriff whatever. If the plaintiff intended, in truth and fairness, to indemnify the sheriff] he should have prepared his bond at a time when it might have been available, and when the sheriff had the power of making the levy. But, as the matter stood, the sheriff *595liad nothing- to protect him from the consequences of a levy, if the assignee of the goods established his title to them, and he was not bound to incur any peril whatever of the kind sought to be imposed upon him by the plaintiff.

Ill- But the assignment to Stewart vested in him the legal title to the goods, and the levy, if made, would have been void. The assignment is perfectly good upon its face, and has for its object to secure to the assignee the payment of his debt, which is proved to be *bona fide,*and *also,*to secure to the other creditors of Hickcox the payment of their debts, so far as the property would go. Stewart accepted the trust, and by this means, he made himself liable to the creditors of Hickcox, to the extent of the entire value of the goods, provided he could not prove his own debt, and he was, at all events, bound to account. This being so, the title to the property was vested in Stewart, and as the sheriff saw the assignment, it was sufficient to put him on his guard. He could not decide upon its validity, and was not bound to hazard a legal contest as to the interests of conflicting claimants. The possession of the goods by Hickcox, was not *per se fraudulent,*and there is nothing but possession to raise even a suspicion of fraud. *[Bissell v. Hopkins,*3 *Cow.*166, *and the note.]*

*Per Curiam.*

To decide this case, it is not necessary to determine the question, whether the deputy sheriff was a competent witness or not; although that question has been raised and discussed at the bar. It was the duty of the sheriff to make the levy without any indemnity whatever, as he found the goods in the hands of the defendant in the execution; and he would not have been liable to an action as a trespasser, if he had made such levy. The goods were pointed out to him as the goods of the defendant in the execution; he was exercising acts of ownership over them; they were in his exclusive custody and possession *;*and the sheriff would have incurred no peril from the act of Ievy~ing. If, after the officer’s first duty was performed, a claim to the property had been interposed, then a jury should have been called to determine the right of property. If, by the inquisition. *596it should be determined that the property was in the claimant, then the return upon the execution should be *nulla bona ;*and gucfi a finding, although it would not be conclusive upon the question of property, would nevertheless justify such a return. Should the jury declare the property to be m a third person, then the sheriff could not be compelled to proceed further, without a full indemnity. But, in the first instance, he was bound to make a levy, and there is nothing in this case to excuse his neglect in that particular.

The sheriff need never be in difficulty upon this point: for if "the title appear doubtful, or the proceedings hazardous, the court, upon application, would extend the time for the making of his return; or he might file a bill of interpleader, and stay all proceedings against him, until the right of property was settled. Indeed, the conflicting claimants could be *compelled*to litigate their claims ; and a sheriff, taking the proper course, would never be subjected to damage of any kind.

In this case, the sheriff refused, or, at all events, neglected, to make the levy; and if the plaintiff" can show that the goods found in the possession of the defendant in the execution, were in truth his property, he is entitled to recover. To determine this question, we have merely to examine the assignment to Stewart; for if the property in the goods did not pass to him, then it remained, beyond all doubt, in the defendant in the execution; for nobody but Stewart has interposed a claim to it. It is evident, from the testimony adduced, that the assignment to Stewart was fraudulent. It bears about it those characteristics which generally indicate fraud. In the first place, the goods were left in the hands,-and under the exclusive controul, of the assignor. This ia always such evidence of property in the possessor, that it throws upon the assignee the duty of explaining satisfactorily, why the goods assigned were left in the hands of the assignor : why delivery, which is in most cases essential to pass the title of chattels, did not accompany the act of transfer. It is true, there may be cases where mortgaged property may be left, for good and sufficient reasons to be shown to the court, in the hands of the mortgagor* But the *intent*of the transfer ought to appear upon the *597instrument of assignment, and if upon the face of the instrument the transfer is absolute, it will throw upon the claimant the whole burthen of explaining why possession did not follow the transfer.

In the present case, the claimant and the sheriff have not even attempted to show why ¡he goods were left in the hands of Hick-cox; why he controuled them; why he sold the goods, and received the money for their proceeds. Here is enough to show the real nature of the assignment, and its objects may be easily guessed, when we look at the date of the instrument, and compare it with the time when the judgment was docketed. The latter precedes the former by several days, and the inference is irresistable, that the object of the assignment was to deieat the execution. The court, in this matter, act also in the place of a jury, and upon every principle of law, as well as inference from facts, vve are all of opinion, that the assignment is fraudulent, and therefore void. It is proved, then, that the property remained in Hickcox : it was in his hands on the day when the sheriff’s deputy proceeded to his store ; it was pointed out to the deputy as the property of Hickcox, and he was desired to -e'< y upon it. It was a plain case, and the sheriff’s duty was obvious : it could not be mistaken. But he neglected that duty, and must respond to the complainant for the consequences of that neglect.

There is one more question to be disposed of, in order to meet all the objections to a recovery, and that relates to the execution itself. We consider that the endorsement made by the sheriff is conclusive evidence, that the execution was in his hands at the time the deputy went to the store to make the levy, and this by the operation of the statute. It is his duty to endorse upon the execution the time when it was received, and here the defendant cannot deny, what he has admitted to be true. There could be no difficulty, therefore, in identifying the execution, without a recourse to the testimony oí Westervelt; and we therefore disregard that evidence in this part of the case. The sheriff or his deputy, (and it matters not which, as the sheriff is responsible for the official acts of his deputy,) had this execution on the 29th of December, 1826, and assumed to act under it. He cannot, there*598fore, gainsay the proof furnished by his own acts, but is conclusively bound by it.

There must be judgment for the plaintiff upon the case, for the amount assessed by the jury.

Mr. Justice Hoffman observed, that he was satisfied, upon further reflection, that there was no necessity for calling Westervelt as a Witness, and he concurred in the opinion of the court in all its parts.

*Judgment for the*plaintiffl