
    John Bates, Daniel Bates, & Geo. Howell v. Edward B. James, Henry Bishop, & Wm. J. Boyd.
    A sale under an execution against one partner, not limited to his right and interest, but of the entire partnership property, is an abuse of the process, and renders all concerned in the sale, liable as trespassers.
    It is an open and doubtful question, whether in an action for the recovery of the property sold, or its value, the partner against whom the execution was issued, may be properly joined as a plaintiff.
    But if the objection to the joinder is not raised in the pleadings, nor taken on the trial, it will not be entertained by the Court at General Term.
    
      It seems, that an execution upon a judgment in the Marine Court of the city of New York, issued more than five years after the judgment was rendered, is, under the provisions of the Code, not merely irregular, but void.
    Judgment for plaintiffs affirmed, with costs.
    (Before Duek, Campbell, and Slosson, J.J.)
    Feb. 9, 1854.
    Appeal from a judgment at Special Term, in favor of the plaintiffs, for $389 18.
    The complaint charged that the defendants had wrongfully taken, carried away, and sold, a large number of tubs of butter belonging to the plaintiffs, of the value of three hundred dollars, and claimed judgment for five hundred dollars damages, with costs.
    The defendants, in their answer, denied the ownership of the plaintiffs, and justified under an execution issued out of the Marine Court of the city of Hew York, against the property of John Bates, one of the plaintiffs.
    The case was now heard upon the following bill of exceptions.
    “ This cause came on to be tried at the City Hall, in the city of Hew York, on the 16th day of June, 1853, at a regular trial term of this court, upon the issue joined upon the pleadings therein, before J. S. Bosworth, Esq., one of the judges thereof, and a j ury duly empannelled and sworn for that purpose; and the counsel for the said plaintiffs, to maintain and prove the said issue on their part, called John Helms, and who being duly sworn, testified that he knew the defendants, that.he was present at a sale of butter in Spruce street, the 15th day of December last, but didnot know the number of firkins sold, he purchased one firkin of about one hundred pounds at twenty-five and a half cents a pound, this firkin was good: Hr. Cary, one of the counsel for the plaintiffs, in behalf of the plaintiffs, forbid the sale, defendants James and Bishop were present, and Boyd as auctioneer sold the butter, such butter was selling at thirty-one cents a pound, about that time I priced some in market, and they asked me that .for it.
    “ On being cross-examined he said twenty-five and a half cents was all in his opinion the butter was worth. The remainder of the butter was about the same quality as far as I can judge as.that I bought, Hr. Cary bid off the remainder of the butter.
    “ The plaintiff then called Theodore Tobe and who, being duly sworn, testified that he was clerk for the plaintiffs in December, 1852, that the plaintiffs were in business together in the butter and cheese business, a man came to the plaintiffs’ store about the 7th of December last, and took away ten firkins of butter worth twenty-nine cents or- thirty-one cents a pound, I did not know the man or men who took it away.
    “ On being cross-examined he said, I saw the men take the butter, I looked through a window ten or twelve feet off, I could not hear what was said, I spoke of the market price of good butter, I did not examine this butter.
    “ The counsel for the plaintiff then called William Bates, and who being duly sworn, said he was about the plaintiffs’ store in December, 1852, was outside when the butter was taken, a eartman and one other man took it, believes there was eight or ten firkins, saw defendant Bishop at Ho. 12 Spruce street, and saw the same butter there marked J. & D. Bates, knew the tubs, they belonged to the plaintiffs, he had seen the same tubs in the plaintiffs’ store.
    “ On being cross-examined he said the style of the firm was J & D. Bates & Co., he saw butter taken by a eartman marked J. & D. Bates, cannot say the number of firkins.
    “ The counsel for the plaintiff, further to maintain their said issue, called Bishop, one of the defendants, as a witness at large in the cause. The counsel for the defendants objected generally and severally in behalf of the several defendants, that Bishop was not a competent witness to testify either generally or severally against the other defendants. The court overruled the objections and admitted the witness, to all of which the defendant, by his said counsel, duly excepted, and the witness testified that the 7th of December last, he took a quantity of butter from 57 Sixth Avenue ; the bill shown to me is correct, it is a bill of the butter sold—except one firkin sold to Mr. Helms—I sold the butter at Ho. 11 Spruce street, on the 15th of December, 1852 ; William T. Boyd, one of the defendants, sold the butter, as auctioneer, as stated in the bill; the bill of said butter is as follows:
    
      “ Hew York, 15th December, 1852, Mr. J. E. Cary, bought of J. W. Somerendyke, store 11 Spruce street.
    2 112 lbs. Butter, 21i cts. , $24.08
    3 61 66 22 66 ' 13.42
    4 55 tt 66 22 66 12 10
    5 [15] 176 in: lbs. 66 22 ■ 66 24.42
    6 [15] 125 110 tc 66 22 66 24.20
    7 [15] 124 109 66 66 22 66 23.98
    8 [14] 122 108 66 66 22 66 23.76
    9 [14] 122 108 66 66 22 66 23.76
    10 [14] 122 108 66 66 22 66 23.76
    $193.48
    Received Payment,
    J. W. SoMEKENDYKE, pi\ W. T. BOYD.
    “ The firkin bought by Mr. Helms is marked on the back of the bill: 1st tub, 114-13-101, at 25 Jc—$25.76.
    “ I saw James there at the time of the sale; the butter was taken and sold by the directions of the defendant James; he has indemnified me for my action in the matter. Counsel for the plaintiff asked whether the defendants James &Boyd were both present and acting at. the sale ; to this the defendants’ counsel objected that the conversing is alleged in the pleadings to have been on the 7th December, that Bishop was acting under an execution regular on its face, and had a right to do what he had done ; and whether Bishop had a legal right or not to take the property, he took it into his possession and converted it; if there was any conversion, it was long before defendant Boyd had anything to do with it, Boyd only acting as auctioneer and salesman for Bishop, and that Boyd could not be held jointly liable with the other defendants. The court overruled the objection, to all 'of which the defendants’ counsel severally and duly excepted; and Bishop answered that James was there when Boyd was selling the butter, that James indemnified him in taking the property.
    “ Bishop being cross-examined said, he took the butter by virtue of the execution in favor of James against John Bates, one of the plaintiffs, which execution was produced in court, which execution was in the words and figures following, that is to say:
    “ City of New York, ss.
    
    “The people of the State, of Hew York to any constable of the city of Hew York, and to every of them, Greeting—
    “ We command you, as before we commanded you, to cause to be made of the goods and chattels of John Bates, defendant in the said city, the sum of sixty-two dollars and thirty-four cents, which Edward D. James, plaintiff, lately in our Marine Court of the city of Hew York, recovered against him in a certain action, and also the sum of seven dollars and thirty cents adjudged by the said court to the said plaintiff for his costs and charges by him, about his said action, in that behalf expended, and have you that money before the said court at the City Hall of the said city, in sixty days from the date hereof, to render to the said plaintiff, and have you then and there this precept.
    “ Witness our Justice of our Marine Court of the city of Hew York, at the City Hall of the said city, the 1st day of December, 1852.
    By the Court,
    Isaac Dayton, Clerk.
    
    “ The plaintiff here rested, and the defendants, by their said counsel, moved that the complaint be dismissed, as to all the defendants, on the ground that Bishop took the property as constable, under and by virtue of an execution which was regular on its face, and that- he and the other defendants were therefore protected under it, and that Boyd in any event.could not be held jointly, and that the complaint should be dismissed as to him. The court denied the motion, and the defendants’ counsel duly excepted thereto. The defendants then put in evidence a judgment, upon which the said execution issued, obtained in the Marine Court, in and for the city and county of ¡New York, in favor of defendant James, against John Bates, one of the plaintiffs, on the 5th day of March, 1845, for the sum of $69 64; that an execution was issued on the day of the rendition of the said judgment, and thereafter returned unsatisfied; and that on the 23d day of January, 1846, an alias execution was issued, which was also afterwards returned unsatisfied, and that on the 1st day of December, 1852, a plv/ries execution, the one now in court and in question, was issued in due form of law upon said judgment, and under which the butter in question was taken by the levy endorsed on the execution ; the butter was taken 7th December.
    
      “ The evidence was here closed; the said Justice then charged the jury, among other things, as follows—that the execution against John Bates, even if valid, rendered no protection to either of the defendants, if the butter belonged to the plaintiffs and was sold out and out. In such a case all that could be sold was the right, title, and interest of John Bates only.
    “ That more than six years having elapsed since the rendition of the judgment in the Marine Court, before the execution in question was issued, no execution could have been then legally issued therein.
    
      u The execution was no protection to any of the parties concerned in the taking or sale of the butter. To this part of the charge the defendants’ counsel excepted.
    “ That if they found upon the evidence that all the defendants participated in the selling of the butter, and that the butter belonged to the plaintiffs, they were jointly liable to the plaintiffs for the value of the butter at the time it was sold? and interest on that sum to the time of rendering their verdict. To this part, of the charge the defendants’ counsel then and there excepted.
    
      Radcliffe, for the defendants, appellants,
    insisted that the judgment should be reversed and a new trial be granted upon the following grounds.
    I. The defendant Bishop took the property, as constable, by virtue of an execution, regular on its face. This protected Bishop, though the judgment be void, and the complaint should have been dismissed as to him. (Parmelee v. Hitchcock, 12 W. R. 96; Saracool v. Boughton, 5 W. R. 170; Horton v. Hendershot, 1 Hill, 118; Earl v. Camp, 15 W. R. 562: Cow. Tr. (2d ed.), 399, 400.)
    H. The court erred in denying the motion to dismiss the complaint.
    At this stage of the suit there.was no cause of action made out against the defendants; and certainly none as to Boyd or Bishop.
    HI. The execution being regular on its face, protected Bishop in taking and removing the property of John- Bates, the defendant therein; Bishop having the right to levy and sell the title or interest of John Bates, which was inseparable, and the plaintiffs offering no receiptor or security, had a right, and it was his duty to remove the property. (Cow. Tr. 1072; 10 W. R. 349 ; 11 Id. 548 ; 14 Id. 124, 5.)
    IV. If there was a wrongful taking and conversion, it was on the 7th Dec. and the sale on the 15th formed no part of the original cause of action; and for this reason the judgment is erroneous, as to Boyd at least. (Sedley v. Sunderland, 3 Esp. No. P. 6, 202; Bishop v. Lyman, 6 N. H. R. 268; 3 Val. Phil. Ev. with (Vancot’s) notes, 187.)
    V. Boyd had nothing to do with the property till eight days after it was taken, when he only acted officially under Bishop, as auctioneer. And the complaint should have been dismissed as to him.
    VI. The sale of the property out and out, beyond John Bates’ interest, is the subject of complaint only by the other two plaintiffs, and not by John Bates; there is no pretence that his interest in the property would more than have satisfied the execution.
    On this point the judge erred in his charge.
    
      The plaintiffs, by their counsel, were present, and simply objected to the sale, without stating any ground or' advising a different sale.
    VII. On the sale, the butter, except one firkin, was bid in for the plaintiffs, and the rule of damages would be the price for which it sold at auction, and not the real value of the butter.
    On this point the judge erred in his charge.
    The butter was bid in on behalf of the plaintiffs for their benefit, and the proper measure of damages is the amount of the bid, and not the value of the property. (Baker v. Freeman, 9 W. R. 36.)
    V1JLI. The fact that the judgment had been rendered over six years when the execution issued, does not make the execution so far void as to render no protection to Bishop and others acting under him, he having no notice of the fact.
    If the judgment was outlawed, the execution was merely irregular, and could only have been set aside on motion.
    The judgment was valid, and not outlawed ; and if outlawed, it is only voidable. If the plaintiffs relied upon the statute of limitations, they should plead it in their reply in avoidance. (1 Chitt. Pl. 556, Pr. 169.)
    IX. The judgment, then, being erroneous as t<$ one or more of the defendants, being for a tort, it must be reversed vn tofo. It cannot be affirmed as to one or more of the defendants, and reversed as to the others. ' (Cruickshank v. Gardner, 2 Hill, 338 ; Sheldon v. Quilin, 5 Hill, 441.)
    X. The judge erred-in his charge as to the validity of the judgment and execution, and protection of the defendants and their liabilities under the execution, and the sale and rule of damages, as severally excepted to on the trial.
    XI. There is no pretence that the defendant, John Bates, had paid the judgment to James; and the execution being at least á protection to Bishop, John Bates has no cause of action against Bishop. The levy was not excessive. The other two defendants alone could only sustain an action for their two thirds of the property.
    There is a misjoinder of plaintiffs.
    
      J. E. Cary for the plaintiffs.
    
      There is no error in the ruling of the Court. The sale by an officer of the entire property in goods owned by two jointly on a fi. fa. is an abuse of the legal authority, which renders the officer liable as a trespasser ah mitío. (Waddel v. Cook, 2 Hill’s Rep. p. 47; 7 Howard’s Practice Rep. p. 383 ; 2 Code Reporter, 50.)
    The jury have found that the entire property was sold by the defendants.
    The defendants not only sold the entire interest in the butter, but on pretence of collecting a debt of $69 64 against one of the plaintiffs, they took and sold property worth $300; and that, too, when, it being in tubs, they could have sold just enough to pay the execution. The whole shows a reckless disregard of law and the rights of the plaintiffs.
    The judgment on which the execution was issued, was barred by the Statute of Limitations. (2 R. S. 295, § 18; Code, p. 73, § 91; Lester v. Redmond, 6th Hill’s Repts. 590.)
    The time in which execution could be issued has expired, and it was a nullity.
    By Sec. 12 of § 64 of the Code, page 59, it is provided as follows : “ Execution may be issued on a judgment, heretofore or hereafter rendered in a justice’s court, at, any time within five years after the rendition thereof.”
    By § 68, page 64, the provisions of Section 64 are made applicable to “the courts embraced in this title;” that is, Title VII—“Of Justices’ and other inferior courts in cities,” “Marine Court in Hew York City.”
   By the Court. Duer, J.

We can look only at the exceptions that appear upon the face of the bill. Hence the objection that John Bates is improperly joined as a plaintiff, and that the action should have been brought in the names of the other partners alone, cannot now be taken. It was not taken upon the trial, and is not raised in the pleadings (Cook, § 148). We add, that if the execution was a nullity, John Bates was not only a proper but a necessary party. We are not to be understood as saying, that, in all cases where the property of a firm has been sold under an execution against one of the partners, an action for its recovery or value may not be properly brought in the names of all the partners. There are dicta that look that way, but no decision; and we regard the question as open and doubtful.

The first exception, that to the competency of Bishop as a witness, has been properly abandoned ; it was plainly untenable. The objection to the admission of the proof that Boyd participated in the sale was properly overruled. The sale is stated in the complaint as a distinct cause of action, and if it was unlawful, all who acted in it with a knowledge that it was forbidden, as Boyd certainly did, did so at their peril, and rendered themselves liable as trespassers ab mitio. The motion to dismiss the complaint was properly denied. If the plaintiffs were entitled to recover at all they were so upon the evidence which had.then been given, and that they were so entitled we cannot doubt. The law is fully settled, that, under an execution against one partner, jt is only his right and interest in the partnership property that can be sold; and if the entire property is sold as his, it is an abuse of the process, which renders not only the officers but all who participate in the sale liable as trespassers (Waddell v. Cook, 2 Hill, 49 ; Walsh v. Adams, 3 Denio, 125). Here the defendant, James, directed the sale, Bishop was the officer holding the execution, and Boyd made the sale, as auctioneer. The decision of the judge, therefore, that they were jointly liable was manifestly correct.

We incline also to think that he correctly decided, that, under the provisions of the Code, the execution was a nullity; but whether it was so or not is quite immaterial. If the exe- = cution was valid the sale under it was just as illegal as if none had been issued ; and the judge was, therefore, right in saying that the execution afforded no protection to any of the parties. The amount of the damages furnishes no ground of complaint. The true rule for the measure of damages, and the only rule applicable to cases of this description, is that which was laid' down by the judge. There is no evidence that the property was bought in by the plaintiffs, and the fact is not admitted.

The judgment must be affirmed with costs.  