
    EMERSON against BLEAKLEY.
    
      Court of Appeals ;
    
    
      March Term, 1867.
    Cause of Action.—-Abatement.—Parties.—Waiver. —Testimony of Deceased Witness.—Amending Verdict.
    An action in the nature of replevin, brought by an assignee for the benefit of creditors, to recover damages from a sheriff, for the tortious taking of assets, does not abate by the death of the plaintiff. The cause of action survives by virtue of 2 Bev. Stat., 44?. 
      
    
    The proper parties to he substituted, in such a case, are the personal.representatives of the deceased trustee, since the action relates to personal pioperty.
    
    But, if a successor in the trust is appointed, and he is substituted as plaintiff in. the action upon the consent of the defendant, the defendant cannot afterwards avail himself of the objection that the action is not properly prosecuted by him as plaintiff.
    The rule that the testimony given on a former trial, by a witness since deceased, is admissible in evidence, is applicable to the testimony given by a party to the action.
    In an action to recover specific personal property, the jury found for the plaintiff as to the one part, and for the defendant as to the other, designating the articles genetically,.without specifying them in detail.—Held, that it was competent for the court to render the verdict certain by directing an amendment of the complaint, inserting therein a list of each class of articles intended by the generic designation of the verdict.
    Appeal from a judgment. ■
    This action was brought by Jesse M. Emerson, successor of Robert Grant, deceased, assignee of William Montgomery (plaintiff, and respondent), against William Bleakley, Jr., Sheriff, &c. (defendant and appellant).
    On or about Dec. 17, 1859, one Alfred Booth obtained a judgment in the supreme court, in Westchester county, against William Montgomery and William Garabrant for $2,268.38 on two promissory notes made by them as “Montgomery & Co.”
    On the 20th of the same month, 1859, Booth caused execution thereon against the property of Montgomery and Garabrant, to be issued to the defendant in this suit, Bleakley, then sheriff of Westchester county.
    On Oct. 20, 1857, a stock company had been organized by Wiliam Montgomery and four others, by the title of the “New York Steam Saw-mill and Machine Company.”
    On the next day, one day after the date of the certificate of incorporation of the company, William Montgomery and one Lnnd (who had become a partner of Montgomery in the place' of Garabrant), for the consideration of §100,000, made a bill of sale of “ all the materials, good-will, and appurtenances of whatever kind or nature appertaining and belonging to the manufacturing and machine business heretofore conducted under the name of William Montgomery & Co.,” together with the full right to the immediate occupancy of the premises in which said property was contained, &c., to the said New York Steam Saw-mill and Machine Company.
    On the same day Montgomery and Lund executed another bill of sale to said Steam Saw-mill and Machine Company, for consideration of $15,000, “of all the steam saw-mills, steam-engines, boilers, machinery, and stock of all kinds manufacturing, or in process of manufacturing, appertaining to and belonging to the engine and machine manufacturing department of the business heretofore conducted under the name of Messrs. Montgomery & Co., together with all the belongings thereto,” &c.
    Montgomery became the president of this machine company on its organization, and always continued such president, and had the management and direction of its business.
    Montgomery & Go. had a lease of the factory premises for five years from May 1, 1855, which passed to the machine company under the bill of sale first above mentioned.
    On the 33rd day of December, 1858, an agreement was entered into between Montgomery and certain others of the stockholders of the said machine company, by which said Montgomery was to become possessed of their stock on certain conditions, which it is claimed were never performed by Montgomery.
    Montgomery, the 39th day of November, 1859, executed a general assignment for the benefit of his individual creditors, to Robert Grant, “ of all the estate and property, real and personal, of him, the said William Montgomery, either individually, or as a member of the late firm of Montgomery & Co., or a corporator or stockholder of the New York Steam Saw-mill and Machine Company.”
    Under this assignment Grant claimed title to the property in question. And as the defendant, as sheriff, had in the first instance levied upon said property, under the said execution of Booth, against Montgomery and Garabrant, this action of replevin was brought by Grant.
    On a former trial of the cause the plaintiff recovered judgment for the full amount of his claim, after the entry of which he died. Subsequently Montgomery, the assignor, applied to the court by petition for the appointment of a successor in the trust, which the court granted by the appointment of Emerson, the present plaintiff. The court also granted an order substituting Emerson in the place of Grant as plaintiff in this action. Both these orders were made upon the written consent of defendant.
    
    
      Emerson "being thus substituted as the successor in trust and as the plaintiff in the action, the defendant appealed from the judgment which Grant had recovered, the result of which appeal was that a new trial was ordered.
    On the trial, the jury found that the stock and materials belonged to Robert Grant, -valuing the same at $13,333.81; and that the tools and fixtures belonged'to the Steam Saw-mill and Machine Company, valuing the same at $13,158.
    Upon the coming in of the verdict, the court directed the complaint of the plaintiff to be amended so as to conform to the evidence, by designating the portion of the property found for the plaintiff by the jury, and described by them as “ stock and materials,” and by designating also the portion found for the defendant, which the jury had described as “ tools and fixtures.” The amendment was made by inserting at the end of the list of articles in the complaint, an enumeration of those which were known as “ tools and fixtures,” and a statement that the residue of the property was known as “stock and materials.” This amendment was made against the objection of the defendant’s counsel.
    Judgment was entered in conformity with the verdict, and was affirmed by the supreme court at general term in the second district.
    
      R. W. Van Pelt, for the defendant, appellant.
    —I. It is claimed on the part of the appellant, that the reversal of the former judgment, by the court of appeals, restored the case, in every respect, to its condition before the plaintiff had any verdict whatever ; for a verdict that is set aside is no verdict (Burkle v. Luce, 1 Comst., 156). The action, being replevin, purely a personal action, therefore, abated by the death of the plaintiff, as he died before verdict, and it could not be revived or continued. This was well settled law before the Code (2 Rev. Stat., 576, § 2; Id., 386-7, §§ 2,3; Webber v. Underhill, 19 Wend., 44; Cutfield v. Corney, 2 Wils., 83). Section 131 of the Code declares that “no action shall abate by the death, or marriage, or othér disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue.” The complaint is for a wrongful detention of the property by the defendant from the plaintiff Grant, and Grant could only maintain the action on showing a wrongful taking or detention from himself. If the defendant in this case had died instead of the plaintiff, it would not for' one moment be pretended that the action could be continued, and a personal judgment recovered against his executor or administrator, founded on the wrongful act of the deceased (Hopkins v. Adams, 5 Abb. Pr., 361). In an action for the recovery of personal property, a demand and refusal are necessary where the defendant becomes possessed of the property by the delivery of the wrong-doer, and merely detains it; and this is applicable to a defendant in possession who is assignee of the wroixg-doer in trust for creditors (Fuller v. Lewis, 13 How. Pr., 219). If the action would have abated by reason of the death of the defendant before verdict, the same rule would apply in case -of the death of the plaintiff. The defendant has not wrongfully taken, nor does he wrongfully detain, the property in question from Emerson the successor of Grant; and upon what principle could he be entitled, in case of success, to a personal judgment against Emerson, “ for the return of the property or for the value thereof, in case a return cannot be had, and the damages for taking and withholding the same,”—which is the only judgment that can be recovered in replevin (Dwight v. Enos, 9 N. Y. [5 Seld.], 470 ; Seaman v. Luce, 23 Barb., 240). The assignment df personal property after conversion does not authorize the assignee to recover without a demand by and refusal as to him (Hall v. Robinson, 2 N. Y. [2 Comst.], 293 ; 5 N. Y. [1 Seld.), 344; 1 E. D. Smith, 522). It may be claimed that the clause in section 121 of the Code, that “after a verdict shall be rendered in any action for a wrong, such action shall not abate by the death of any party, but the case shall proceed thereafter in the same manner as in cases where the cause of action now survives by law,” applies to the present case ; and because there has once been a verdict, the action does not abate. But clearly this applies to cases, only, in which the verdict shall be retained, and this was the law before the Code. But, however this clause may be construed, no personal judgment could be rendered against the representatives, for the action must thereafter proceed in the same manner as in cases where the cause of action now survives by law ; and not the executors or administrators, but only the. assets of the deceased remaining in their hands, are liable. It may also be insisted, that as Grant claimed title under an assignment for the benefit of creditors, he was the trustee of an express trust, and that the action did not abate, for the reason that the trust survived. But Grant did not sue as trustee or assignee. The complaint shows that he brought the action in his own name and right, and thus he became entitled to all the rights, and subject to all the liabilities of ordinary parties.
    II. The motion for a dismissal of the complaint, on the ground “that it appears by the plaintiff’s evidence that the title to the property was in the personal representatives of Grant, according to the terms of the assignment,” should have been granted. The assignment transferred and conveyed the property, real and personal,, to the said Robert Grant, 7ds heirs, executors, administrators, and assignees forever, in trust, &c. The simple order appointing him trustee, did not transfer the title from the legal representatives of Grant, and vest in him. On Grant’s death, the title vested by operation of law in his legal representatives ; by the very terms of the instrument that gave him title, those representatives would have the right to execute the trust, for the cestui que trust had accepted the assignment with this provision in it, and the court could not interpose and remove or supersede them by appointing another successor without cause. Grant had recovered the judgment appealed from in his own name, and on his death it vested in his personal representatives,' and not in his successor in the trust (Renaud v. Conselyea, 3 Abb. Pr., 346 ; S. C., 4 Id., 280). On the reversal of the judgment, by the express provisions of the assignment, the claim, or the property for which the judgment had been recovered, passed to his representative.
    III. The judgment of the court of appeals not only reversed the prior judgment of Grant, • "but also reversed and vacated all subsequent orders and proceedings founded upon that judgment, including the orders and proceedings appointing Emerson successor,. &c., and therefore it was error to receive them in evidence under defendant’s objection and exceptions—they were no longer operative. The Code provides that every action shall be prosecuted by the real party in interest, and the evidence on the part of the plaintiff not only does not show any right, title, or interest in Emerson, but it expressly shows it out of him.
    IY. If the action survives, and the order appointing Emerson successor is still operative, and vested the title in him, then it was error to receive the testimony of Grant, the former plaintiff, given on his trial, for the reason that the defendant was not entitled to be sworn as a witness in his own behalf, after Emerson was substituted as plaintiff, as Emerson derived his title directly from Grant. If the living are not permitted to testify against the dead, surely the dead should not be permitted to testify against the living. Section 399 of the Code does not authorize the testimony of a deceased party to be read on a new trial. Independent of this section, the right to do so cannot even be claimed. And see amendment of Code, May 4, 1863. It was also error to receive the declarations of Grant to Montgomery, in respect to completing the order in hand.
    Y. The motion for the nonsuit on the ground that the plaintiff was not the owner of the property, nor Grant at any time ; and also that it was incompetent for Montgomery to make any transfer of the subject of his trust while acting as president of the machine company, should have been granted. And the verdict for the plaintiff for the portion of the property specified in it as stock and mate- . rial, is- contrary to, and unsupported by the evidence, and in utter disregard of the charge of the judge. .
    YI. It was error to allow the question put to Lund, in reference to his delivering to, and leaving in the possession of Montgomery, the property in question, on the ground that it was not competent for witness to deliver the property to any one, as he had only a shareholder’s interest.
    YII. The court erred in excluding the evidence offered "by the defendant to show that he made a levy upon the property in suit, as sheriff of Westchester county, under an execution issued to him on a judgment duly recovered, and that said levy was in full force and effect. Surely if it was competent to show the title out of the plaintiff Grant, in the machine company, it was also competent to show that the defendant as sheriff held the property in suit under a levy against the real owner, whether taken "before or after suit.
    YIII. Under the charge of the judge, it was the imperative duty of the jury to render a verdict for the defendant as to all the property in question; instead of doing so, they assumed to divide the property, the title to which was a unit, between the plaintiff and the defendant. Their verdict is manifestly wrong, and should have been set aside by the court below.
    IX. The justice who wrote the opinion at general term, is in error in supposing that the testimony in relation to the stock and material was substantially different from that in relation to the tools and fixtures. If Montgomery had not the power to acquire the title to the property . of the machine company, without the authority or direction of the trustees of said company, and while acting as president of said company, and if there is no evidence that the trustees of said machine company ever transferred or authorized a transfer of said property to Montgomery, how could he possibly become the owner of the stock and materials of said machine company %
    
    X. The verdict does not separate and specify, or sufficiently describe, the property intended to be "given to either plaintiff or defendant, and for this is bad. It is a mistrial. The special verdict should find every fact necessary to enable the court to order judgment (Manning v. Monaghan, 23 N. Y., 539 ; Cobb v. Cornish, 16 Id., 602 ; Gilbert v. Beach, Id., 606).
    
      XI. The affidavit of Grant states the actual value of the property selected out by the plaintiff at $3,000. The verdict is excessive.
    XII. The judge erred in refusing to charge the first proposition.
    XIII. The judge erred in refusing to charge the tenth proposition (Ackerman v. Emott, 4 Barb., 626; Tuny v. Bank of Orleans, 7 Hill, 260 ; Dobson v. Racey, 3 Sandf. Ch., 60).
    
      S. E. Church, for the plaintiff, respondent.
    I. The action did not abate by the death of Robert Grant. Being prosecuted by the plaintiff in a representative capacity as a trustee, it was saved from abatement by the operation of the law as it stood before the Code (amendment of 1857), and as it now stands independently of that amendment. In contemplation of law, trustees and persons prosecuting an action in a representative capacity never die. It is the trust, and not the trustee, that constitutes the real party (2 Rev. Stat., 5 ed., 19, § 53 ; Id., 22, § 87; Id., 213, § 14 ; Id., 670, § 14 ; Id., 777, § 113 ; 2 Den., 125). It cannot be said that the plaintiff (Grant) in this case was' not a “ tncstee” within p. 670, § 14, as not being appointed “by virtue of any statute.” For he is appointed by virtue of the statutes authorizing assignments for the benefit of creditors, and the statutes of uses and trusts. And see Code, § 113 (4 Abb. Pr., 106; 3 Rev. Stat., 5 ed., § 87, et seq.). But independently of the general law, the abatement was prevented by the operation of the amended Code of 1857 (Code, § 121, subd. 2 ; amendment 1857, § 101). The action has not abated, because being put regularly in court by the orders of substitution of October 23, 1861, it was there for all the purposes of a full litigation, as in other actions, and no death has since occurred to abate it. If there were any irregularities in the orders of October 23, 1861, they are conclusive until set aside (29 Barb., 664; 18 How. Pr., 112).
    II. The remaining questions in the case arise upon the defendant’s exceptions, and are of but little importance. Grant’s testimony was properly read : he was a witness as well as a party (2 Johns., 17 ; 11 Id., 28 ; 12 Wend., 41). The complaint was properly amended to conform to the verdict or the proofs (Code, § 173). The defendant did not object to the form of the amendment, and the amendment was clearly proper. The judgment should be affirmed with damages for the delay.
    
      
       See, also, Johnston v. Bennett, ante, 331.
    
    
      
       Compare Bunn v. Vaughan, ante, 269.
    
    
      
       The petitions, consents, and orders, were in the following form:— To the Justices of the Suprem-e Court of the State of New York :
      
      The petition of William Montgomery, of the county of Westchester, respectfully represents:
      That on the 29th day of November, 1859, at the city of New York, your petitioner executed and delivered to one Robert Grant, then of Westchester county, merchant, doing business in the city of New York, a general assignment for the benefit of his creditors. That said assignee accepted the trusts contained in said assignment, and entered upon and continued in th duties thereof until the 28th day of September last, when he died, to wit, at Yonkers, in said county of Westchester. The said assigned estate consists at present of a judgment recovered in the name of said assignee against William Bleakley, Jr., sheriff of the county of Westchester, for the sum of $26,475.10, and docketed in said county of Westchester on the lOlh day of September, 1861, and claims now in litigation in behalf of said assignee.
      That an appeal is about to be taken from the judgment aforesaid, as your petitioner is informed and believes, and that there is now no person to represent said estate, or to execute the duties of said trust.
      Your petitioner represents that Jesse M. Emerson, of the city of New York, publisher, is a proper person to be charged with the execution of said trusts, under the direction of the court, as the successor of the said Robert Grant, deceased, and your petitioner prays that he maybe appointed thereto accordingly. And your petitioner will ever pray, &c.
      
        [Verification] [Signature.]
      
        I consent to execute the trusts contained in the above-mentioned assignment of William Montgomery.
      Jesse M. Emerson.
      [Title of the cause.]
      We approve of and consent to the appointment of Jesse M. Emerson, above-named, to execute the trusts contained in the above-mentioned assignment of William Montgomery.
      
        [.Signatures o/] Attorneys for Defendant.
      
      It a special term of the supreme court of. the State of Hew York, held at the court-house in the county of Queens, on the 23rd day of October, 1861,
      Present—Hon. Wm. W. Scrugham, Justice.
      
      [Title of the cause.]
      On reading and filing the stipulation and written, consent of the parties to this action, whereby it. appears that Robert Grant, the plaintiff, suing as assignee of William Montgomery in this action, is deceased, and that Jesse M. Emerson, of the city of Hew York, has been duly appointed, by the order of the court duly entered, to execute the duties of this trust contained in said assignment, and consenting the said Emerson to be substituted for the said Grant as plaintiff in this action,
      On motion of S. E. Church, plaintiff’s attorney, it is Ordered, that said Jesse M. Emerson be, and he hereby is, substituted for and in the place of said Grant, as plaintiff in this action.
      
        [Signature of~\ Clerk.
      
      [Title of the cause.]
      Robert Grant, the plaintiff, suing as assignee of WillianxMontgomery in this action, having deceased since judgment entered' thereon, and Jesse M. Emerson, of the city of Hew York, having been duly appointed by the order of the court as the successor to said Grant in the execution of th,e trusts contained in said judgment, and an appeal being about to be taken from the said judgment, we do hereby consent that said Emerson he substituted for .said Grant as plaintiff in this action.
      [Signatures of Attorneys.]
      [Hate.]
    
   Hunt, J.

—The appellant claims a reversal of the judgment below, on the ground that this being an action • of replevin, for a tortious taking of the property in question by the defendant from the possession of Grant, the action abated by the' death of Grant, in whom the right of action existed. Grant died a year and a half before the trial occurred on which the present judgment was rendered; and the claim involves the invalidity of all the proceedings subsequent to his death. The appellant also claims that the existence of a verdict in favor of Grant, at the time of his death, places the plaintiff in no better situation, for the reason that that verdict was after-wards set aside by the court of appeals; and a verdict set aside, it is claimed, is, in law, as if there had been no verdict. The appellant insists that upon the death of Grant, the trust estate conveyed to him by the assignment of Montgomery, descended to his personal representatives, and that this action should be brought by them, if by any one, and not by a newly appointed trustee. These suggestions involve separate considerations, which will be more readily appreciated by a separate examination of the propositions.

First. Did the action of Grant, for the tortious taking and conversion qf this large amount of property, abate by his death, in the sense that all claim for compensation was thereby ended \ If this action had been to recover damages for an assault aud battery or a libel of which he had been the subject, upon his death before verdict, all right to damages, in any form or by any party, would have ceased. The maxim “ actio personalis mori tur cum persona” applies to such a case. In the present case a debtor in failing circumstances had conveyed to Grant a large amount of personal property, upon the trust and direction that he should apply the proceeds of the same in the payment of certain specified debts. The defendant, as sheriff, seizes the same upon an execution against the insolvent debtor, and removes the same from the possession of Grant. The assignee, Grant, brings an action to recover damages for such removal, but before trial he dies. The rule in such case is provided by statute (2 Rev. Stat., 447, § 1): “ For wrongs done to the property, rights, or interests of another, for which an action might be maintained against the wrong-doer, such action may be brought by the person injured, or, after his death, by his executors or administrators, against such wrong-doer, and after his death, against his executors and administrators, in the same manner and with the like effect in all respects, as actions founded upon contracts.” It is further provided by section 121 of the Code, that “¡No action shall abate by the death, marriage, or other disability of a party, or by the transfer of any interest therein, if the cause of. action survive or continue.” Being a claim for wrongs done to the property of Grant, and it being clear, therefore, that the cause of action survived the death of Grant, the right to, damages did not cease with his life.

Second. It is said, however, by the appellants, that this cause of action vested in Grant’s executors, and not in a new trustee to be appointed by the court; and this is the second question'in the case. I understand, the law to be, that personal estate held in trust, upon the death of the trustee descends to, and the title vests in, the personal representatives of the trustee, and that the provis - ions of the statute giving the title to a trustee to be appointed by the court, apply to trusts in real estate only (1 Rev. Stat., 730, § 68 ; Savage v. Burnham, 17 N. Y., 561; Kane v. Gott, 24 Wend., 641; Bunn v. Vaughan, ante, 269). The parties, however, have made the law for themselves in the present case, by their stipulation of Oct. 20, 1862. This stipulation is signed by the appellants’ attorneys ; recites that Grant sued as the assignee of Montgomery; that he died since judgment had been entered ; that Emerson had been appointed his successor in the execution of the trusts contained in the assignment, and that an appeal was about to be taken from the judgment, and concludes thus : “ We do hereby consent that the said Emerson bo substituted for said Grant in this action.” This binds the appellants as completely as if they had stipulated that Emerson was Grant’s executor, and that the action should proceed without further delay. They agree, in substance, that Emerson is the proper person to prosecute Grant’s rights under the assignment, and consent that he may do so as plaintiff in the present action. If the general rule of law is as claimed by the appellants, it is evident that the present- action is properly prosecuted. This view of the case renders it necessary to consider the effect of the first verdict, the vacating the same, and the rendering of a second verdict in favor of the plaintiff.

There are several minor questions presented upon the appellants’ brief, which have been carefully considered, and no reason for disturbing the judgment is perceived. The questions of fact were of a doubtful character, but having been determined by the jury, we are not at liberty to interfere with them. Neither do questions of practice or regularity properly come under consideration in cases like the present. The most of the questions of law were ruled as requested by the appellant. If any injustice has been suffered by them, it was at the hands of the jury, for which we can give no redress.

The judgment should be affirmed.

Parker, J.

—I think there was no abatement of the action by the death of Grant, the original plaintiff. The cause of action survived by virtue of the statute (2 Rev. Stat., 447, § 1, 1st ed. ; Webster v. Underhill, 19 Wend., 447) ; and this being so, section 121 of the Code saves the action from abatement.

Although Grant held the property in question as a trustee, on his death it passed, under the common law, to his personal representatives, who were bound to execute the trust (De Peyster v. Ferrers, 11 Paige, 13). We held in the case of Bunn v. Vaughan, decided at the last term of this court, that section 68 of the article of the revised statutes relative to uses and trusts (1 Rev. Stat., 730, 1st ed.), does not relate to personal property, and that the common law rule above referred to still exists .and applies in reference to such property. The consequence is, that on the death of Grant, the title to the property passed to his legal representatives, who, unless they had transferred it to Emerson, should have been substituted. But the appointment, by the court, of Emerson to execute the trusts of the assignment, and his substitution as plaintiff in the action, having both been made by the the express consent and stipulation .of the defendant, set forth in the case, I am inclined to think his motion for a dismissal of the complaint upon the trial, on the ground that the title to the property was in the personal representatives of Grant, was properly denied. Non constat that the cause of action had not passed by assignment from the personal representatives of Grant to Emerson. In that case he was the proper person to be substituted; and, I think, as against the defendant, under his stipulations, such assignment should be presumed.

The other grounds on which the nonsuit was claimed, to wit, that Grant was not the owner of the property when the suit was brought, and that it was incompetent for Montgomery to make any transfer to himself, were also properly regard ;d as not well taken—the first as involving a question, of fact for the jury, and the other as not covering the whole of the plaintiff’s claim.

The objection to the introduction of Grant’s testimony on the former trial, was properly overruled. It was but the common case of reproducing the testimony of a deceased witness. I see nothing in the objection that he was a party. He was also a witness, and therefore within the rule allowing proof of what he testified to he given. The inquiry of the witness Montgomery, whether he received any directions from Grant in regard to the property, immediately after the delivery of the assignment, was relevant and proper as part of the res gestae. The question to the same witness, as to what was done with moneys, which he had stated were realized from a portion" of the assigned property, was also properly allowed.

I see no error in the rulings in regard to the questions put to the witness Lund as to his delivery, when he left, of the stock, &c., at the machine shop, to Montgomery, and as to his ever again exercising any acts of ownership over the property. This was clearly pertinent to the question which was litigated, whether Montgomery owned the property, or any part of it.

The offer of the defendant to prove that the sheriff of Westchester levied upon the property in question, as the property of the Steam Saw-mill and Machine Company, after this suit was brought, was wholly irrelevant and immaterial, and was properly excluded.

The court was requested to charge “ that if the sheriff (defendant) found Montgomery in the actual possession of the property levied on under the Booth execution, the plaintiff must prove a demand of said property and refusal to surrender it before he could recover,” wdiich was refused. If the property belonged to the plaintiff, the taking it out of the possession of Montgomery—who was the plaintiff’s agent, using it in the plaintiff’s business— in hostility to the plaintiff’s right to it, was a wrongful taking as against the plaintiff (Clark v. Skinner, 20 Johns., 465), and no demand was necessary (Cummings v. Vorce, 3 Hill, 282 ; Dunham v. Wykcoff, 3 Wend., 280). The request was therefore properly refused.

As to the defendant’s request to charge that Montgomery, while acting as president of the machine company, could not become the purchaser of its property if objected to by any stockholder or creditor of the company, there was nothing in the evidence calling for such instruction to the jury, nor for anything more on that subject than the court had already said to them; for they had already been instructed that, as to all that portion of the property in question which had been transferred to the machine company, and which had been acquired by said company, the title to it remained in the company at the time of the assignment, and did not pass to Grant, and that Montgomery’s interest in such property at the time of the assignment wa,s a stockholder’s interest only, and that only such interest passed by the assignment, so that the additional instruction requested was entirely nugatory.

The complaint .now made by the plaintiff’s counsel, that under the charge of the court it was the duty of the jury to render a verdict for the defendant' as to all the property in question, and that the court below should, on that ground, have set aside the verdict, is not one which this court can listen to or redress. The case is not open to us for an examination of the facts.

The finding by the jury that Grant was the owner of that portion of the property in question described as sloclc and materials, and not of that described as tools and foxhores, rendered necessary a more specific description of the two classes. This the court ordered to be made by directing the complaint to be amended so as to conform to the evidence, and to designate the portion of the property found for the plaintiff, described as “stock and materials,” and the portion found for the defendant, described as “tools and fixtures,” to which the counsél for the defendant excepted ; and thereupon the plaintiff did amend the complaint by inserting at the end of the list of articles a list of those which he denominated “ tools and fixtures,” and stated that the residue of said property was known as “stock and materials.” Ho fault was • found with the manner in which the distribution was made and the amendment carried out.

I think it was competent for the court to amend the verdict, as was in effect done, for the purpose not of adding or subtracting, but specifying in accordance with the evidence, as was done in this case (Sleght v. Hartshorne, 1 Johns., 149 ; 1 Sell. Pr., 480 ; 1 Archb. Pr., 215 ; 2 Id., 275).

Upon the whole case, I am of the opinion that the judgment should he affirmed.

Judgment affirmed.  