
    Acker, sheriff &c., vs. Witherell and others.
    The trustees of the estate of an absconding, concealed or non-resident debtor, may maintain an action against the sheriff for suffering the goods attached by him to bo lost through his negligence.
    Where, in such action, the declaration commenced by describing the plaintiffs as “ trustees for all creditors of the estate, real and personal of M., late of &c., an absconding or concealed debtor,” and then set forth the proceedings against M. down to and including the seizure of the property by the sheriff in virtue of the warrant, but contained no direct averment that the plaintiffs had been appointed trustees in consequence of such proceedings; held, nevertheless, that the declaration was sufficient in this respect on error, no special demurrer having been interposed.
    Goods of a mere under-tenant which have been removed from the demised premises before any rent became due, are not liable to be distrained for subsequently accruing rent.
    Otherwise, if the goods belong to one who occupied as assignee of the original tenant.
    The fact of demised premises being found in the possession of one not named in the lease, raises the presumption that he is in as assignee of the lessee and not as under-tenant; especially if it appear that he has paid rent to the original landlord.
    Though goods be seized by the sheriff under an attachment against an absconding debtor, this detracts nothing from the landlord’s right to distrain them for rent.
    Error to the superior court of the city of New-York. ' The commencement of the declaration in the court below was as follows : “ City and county of New-York, ss. Edward Witherell, Casper Writter and William A. Cromwell, of the said city, trustees for all creditors of the estate real and personal of John M’Lane, late of the said city, an absconding or concealed debtor, plaintiffs in this suit, by &c., complain,” &c. The fifth count was in these words : “ For that whereas, &c. on the 17th day of April, 1839, Allen Gorham made application in writing to the Hon. Thomas J. Oakley, one, &c., stating that he [Gorham] was an inhabitant of the state and city of New-York, and was a creditor of the said M’Lane, late of the city of New-York, in the sum of $100 and upwards, and that the said M’Lane was an inhabitant of this state, residing in the city of New-York, and had secretly absconded from and left this state with the intent to defraud his creditors or to avoid the service of civil process; and prayed,” &c. [detailing the proceedings pursuant to the statute, viz. that a warrant was issued and delivered to the defendant, sheriff of the said city and county, and that by virtue thereof he attached certain goods belonging to M’Lane.] The declaration then averred that the plaintiffs demanded the goods of the defendant, who had negligently suffered them to be taken out of his possession whereby they became wholly lost. There was no allegation, except as above, that the plaintiffs had been appointed trustees. The defendant pleaded the general issue, and a trial was had on the fifth count only, the others having been abandoned. The facts of the case, as they appeared on the trial in the court below, were as follows : The goods in question were removed by M’Lane, on the 15th of April, 1839, from store No. 121 Fulton-street, New-York, to store No. 110, on the same street. The former store had been occupied by M’Lane from October, 1838, down to the time the goods were removed. On the 17th of April, two days after the removal, the defendant seized the goods in virtue of the warrant against M’Lane and caused them to be taken from store No. 110, to a room in Courtlandt-street, where they remained till in May following, when they were distrained and sold in behalf of one Eenscher for a quarter’s rent of store No. 121, Fulton-steet. The rent fell due the 1st of May, on a lease given by Eenscher to one James. The rent of the previous quarter ending on the 1st of February, had been paid to Eenscher by M’Lane. The court below charged the jury that, as the goods had been removed from store No. 121, and were in the custody of the defendant in virtue of the warrant against M’Lane, they could not be followed and distrained by Eenscher; and therefore the distress constituted no defence to the action. The defendant below excepted to the charge, and the jury rendered a verdict in favor of the plaintiffs. After judgment, the defendant sued out a writ of error.
    
      iS. Stevens, for the plaintiff in error,
    said it was doubtful whether trustees under the statute relating to absconding debtors could in any case maintain an action of this character. (1 R. S. 798, §7, 2d ed.) But if it were otherwise, still the judgment of the court below must be reversed, for the reason that there is no sufficient averment in the^declaration of the plaintiffs having been appointed trustees. Again : on the proof given at the trial, the court below had no right to direct a verdict for the plaintiffs. The defendant showed that the goods were taken from his custody under a lawful distress; and thus his alleged default was excused. True, had M’Lane been a mere under-tenant, the goods in question would not have been liable to seizure in virtue of the distress warrant1. ■ The fact, however, of his having occupied the premises, and paid rent to the landlord, raised the presumption that he was in as assignee of the original tenant; (Williams v. Woodward, 2 Wend. 487;) and if so, the goods were rightfully distrained. (Coles v. Marquand, 2 Hill, 447.)
    
      JV*. Hill, Jr. contra.
   By the Court,

Cowen, J.

Bringing the introductory clause in the declaration and the fifth count into immediate juxtaposition, we then have the allegation that the plaintiffs below were trustees of the creditors of John M’Lane, who is shown to have been regularly proceeded against as an absconding debtor. There is, to be sure, no direct averment that their appointment was in consequence of the proceeding mentioned. This, however, is plainly inferable from the whole matter, which is sufficient on writ of error, no special demurrer having been interposed.

Scarcely a question was made on the argument that, being properly connected with the proceeding, the defendants in error might sustain an action against the sheriff for his alleged default. (1 R. S. 798, § 7, 2d ed.)

It is not insisted that the seizure by the sheriff detracted any thing from Renscher’s right to distrain. (1 R. S. 796,2d ed. § 28.) This being so, the proceeding is disembarrassed of the objection thatthe goods were in the custody of the law. They are to be looked upon as goods removed by M’Lane from the demised premises, and still held by him. No question is made that they were distrained within the thirty days allowed by the general statute. (2 R. S. 413,2d ed. § 16,17.) Nor was-any such question specifically raised in the court below.

Coming to the general, statute, I have not been able to discern any ground for the peremptory direction given to the jury by the court below, that there was no right of distress. If M’Lane had been a mere under-tenant of James, the goods belonging to M’Lane and being removed before a right to dis-train accrued to the landlord, they would, indeed, have been exempt from distress, within the late case of Coles v. Marquand, (2 Hill, 447.) Otherwise, if he was assignee, according to the same case. There was nothing in the proof directly defining his relation ,• and it should at least, I think, have been left with the jury to say whether he was one or the other. The presumption of law, where a man is shown to be in possession of leasehold premises, without any thing more, I take to be, that he is in as an assignee of the original tenant. (2 Phil. Ev. 150, 151, N. Y. ed. of 1839; Williams v. Woodward, 2 Wend. 487, 492.) Here too is proof beyond mere possession. M’Lane paid rent to Renscher. (Id. ibid.)

The judgment must, I am of opinion, be reversed, and a venire de novo go from the court below.

Ordered accordingly.  