People v. Hopson

By the Court, Bronson, Gh. J.

For the purpose of showing guilty knowledge, or making out the intent with which an act was dohe, other acts of the same nature, and done about the same time, may sometimes be given in evidence; and this whether the proceeding be civil or criminal in its form. (Cary v. Hotailing, 1 Hill, 311 , and the books there cited.) But as a general rule, whether the proceeding be civil or criminal, evidence can only be given of the particular matters laid to the party’s charge. Here, there was no question of intent; nor was it a case for making out guilty knowledge by circumstantial evidence. ' The defendants knew that Lascells was an officer. Proof of that fact, and of the assault and resistance, made out a complete case; and it was clearly wrong to admit proof of another distinct offence, for which the defendants were not then on trial.

We might stop here; but the counsel on both sides wish to have the other questions settled for their guidance on another trial.

Until an execution has been satisfied, it may be renewed by the justice. .(2 R. S. 251, § 145.) It is said that the levy upon sufficient personal property to pay the debt was a satisfaction of *578 the judgment; and consequently that the renewal was void. We have repeatedly held that such a levy does not always satisfy the judgment. (Green v. Burke, 23 Wend. 490 ; Ostrander v. Walter, 2 Hill, 329 .) And if the broad ground has not yet been taken, it is time it should be asserted, that a mere levy upon sufficient personal property, without any thing more, never amounts to a satisfaction of the judgment. So long as the property remains in legal custody, the other remedies of the creditor will be suspended. He cannot have a new execution against the person or property of the debtor, nor maintain an action on the judgment, nor use it for the purpose of becoming a redeeming creditor. But without something more than a mere levy, the judgment is not extinguished. There is no foundation in reason for a different rule. The mere levy neither gives any thing to the creditor, nor takes any thing from the debtor. It does not divest a title: it only creates a lien on the property. It often happens that the levy is overreached by some other lien, is abandoned for the benefit of the debtor, or defeated by his misconduct. In such cases there is no color for saying that the judgment is gone; and yet they are included in the notion that a levy satisfies the debt. And where, as in this case, the officer omits to sell within the life of the execution, I see no reason why the debt should be deemed paid, nor why the creditor should not have a renewal of the process. The true rule I take to be this: the judgment is satisfied when the execution has been so used as to change the title, or in some other way deprive the debtor of his property. This includes the case of a levy and sale; and also the case of a loss or destruction of the goods after they have been taken out of the debtor’s possession by virtue of the process. When the property is lost to the debtor in consequence of the legal measures which the creditor has pursued, the debt is gone, although the creditor may not have been paid. He must take his remedy against the officer, if he has been in fault; and if there be no such remedy, the creditor -must bear the loss. But until the debt is paid, or the debtor has lost his property in consequence of the levy, the judgment remains in force.

*579 This leads me to notice the defendants’ offer to show that the mare was lamed, and rendered of little value, by the carelessness of the constable while the property was in his possession by virtue of the execution. If the.offer means that the deterioration in value was equal to the whole amount remaining unpaid on the execution, I think the evidence should have been received. It would make out a legal satisfaction of the judgment, of which the officer had notice; and he was consequently a wrongdoer, when he afterwards went upon the debtor’s land. If the injury to the property preceded the renewal of the execution, the renewal was void, because the execution had been satisfied: and if the injury was after the renewal and before the sale, there was then no authority to sell, and the officer might be legally resisted. Although a levy alone will not extinguish the debt, yet a levy followed by such acts as destroy the debtor’s beneficial interest in the property, without any fault on his part, must have the effect of putting an end to the judgment.

The next question is on the offer to show that Lascells had not taken the oath of office, or given security, and so was not a legal officer. The evidence would be proper, if Lascells, instead of the people, was the party complaining of an injury. If he were suing to recover damages for the assault, it would probably be a good answer to the action that he was not a legal officer, but a wrongdoer, who. might be resisted. And clearly, he cannot recover fees, or set up any right of property on the ground that he is an officer defacto, unless he be also an officer dejurc. (Riddle v. The County of Bedford, 7 Serg. & Rawle, 386 ; Keyser v. McKissan, 2 Rawle, 139 ; Fowler v. Beebe, 9 Mass. R. 231 ; Green v. Burke, 23 Wendell, 490 ; The People v. White, 24 id. 526 .) When one man attempts to exercise dominion over the person or property of another, it becomes him to see that he has an unquestionable title.

But it is equally well settled, that the acts of an officer de facto, though his title may b.e bad, are valid so far as they concern the public, or the rights of third persons- who have an interest in the things done. Society could hardly exist without such a rule. I will only refer to two or three cases where many *580 of the others have been collected. (The People v. Stevens, 5 Hill, 630 ; Green v. Burke, 23 Wend. 490 ; Taylor v. Skrine, 2 Const. Rep. S. C. 696.) Now here, although Lascells is a witness, he is not a party; nor is this a proceeding for his benefit. The people are prosecuting for a breach of the public peace; and it is enough that Lascells was an officer de facto, having color of lawful authority. The rights of the creditor, the due administration of justice, and the good order of society all concur in requiring that he should be respected as an officer until his title has been set aside by due process of law. The evidence offered was properly rejected.

Where a levy is made upon personal property without removing it from the possession of the debtor, I see no reason why the officer may not advertise it to be sold, and sell it on the premises of the debtor—taking care to do no unnecessary damage. And if that may be done, then third persons may rightfully attend the sale as bidders.

But on other grounds the verdict must be set aside.

New trial granted.