
    Peter Bowe, Sheriff, Resp’t, v. Charles W. Wilkins et al., App’lts.
    
      (Court of Appeals,
    
    
      Filed April 19, 1887.)
    
    1. Sheriff—Bond of indemnity—Attachment — Void when attachment VACATED.
    The plaintiffs in action in which they attached the goods of the defendant, gave the sheriff abend of indemnity “from all liability, suits and judgments against him, by reason of the levying, attaching and making * sale under and by virtue of such attachment of the property, and for the defense of any action which might be brought against the sheriff for such taking.” The attachment was vacated, and the sheriff being sued for the goods, gave notice to said plaintiffs, and at their request defended, and was defeated. He now seeks to recover from these defendants upon their bond of indemnity. Held, that after the vacating of the bond the sheriff was bound to surrender the. property on reasonable demand, and his refusal was an illegal act, which it cannot be supposed the bondsmen indemnified against.
    
      2. Same—Pleadings liberally construed.
    Where a complaint alleges a wrongful taking by the sheriff, a demand for return and a refusal, and the defendant set up the issuance of the ■ attachment, etc., the plaintiff could properly prove that it had been vacated, and a demand had been made thereafter and refused before suit commenced.
    3. Evidence—Parol.
    When it does not appear from the record what was the precise ground upon which a case was decided, parol evidence may be given, provided such ground was within the issues of the case.
    
      4. Same.
    As the refusal of the sheriff to deliver was unconditional, it is too late for him now to claim it; he was entitled to the service of a certified copy of the order vacating the attachment, and to be paid his costs, etc.
    5. Same.
    The defense of the suit by the original plaintiffs, at the notification of the sheriff, was not equivalent to a ratification of his action, as it did not appear that they knew of the demand and refusal after the attachment had been vacated. Huger, 0. J., dissenting.
    Appeal from supreme court, general term, first department.
    
      A. Blumensteil, for app’lts; Chas. F. MaoLean, for resp’t.
   Peckham, J.

The plaintiff brought this action to recover from defendants some $5,000, which he had paid upon a judgment recovered against him by one Gallinger, under the following circumstances: In December, 1880, one Harriet S. Briggs was the owner of a stock of goods in a store in New York, and on the second of that month she assigned them to Gallinger, for the benefit of her creditors. On the same day, William H. Talbot and others commenced an action against Mrs. Briggs, and procured an attachment against her property, and placed it in the hands of the sheriff, who levied upon the goods which she had assigned to Gallinger, and which were claimed by him. The sheriff, on the 16th, took a bond" of indemnity, signed by these defendants, and kept the goods. The condition of the bond was that, if the obligors should indemnify the sheriff from all liability, suits, and judgments against him by reason of the levying, attaching, and making sale under or by virtue of such attachment of the property, and for the defense of any action which might be brought against the sheriff for such taking, then the bond to be void, otherwise 'valid. This attachment was, on the twenty-first, of December, vacated, and, on the twenty-fourth of that month Gallinger commenced an action to recover from the sheriff the value of the goods which had been taken by him. The sheriff gave notice of the suit to these defendants, and at their request he defended it; they being represented by counsel on the trial thereof. The trial resulted in a verdict and judgment against the sheriff for the value of the goods, which he subsequently paid, and then commenced this action to recover from the defendants, on their bond, the amount he had paid under the Gallinger judgment, and the expenses he had been put to in defending it. The defendants herein set up in their answer that the sheriff, after the attachment had been vacated, and after due demand had been made upon him, refused to surrender the property attached, and this refusal was without the knowledge or assent of the defendants herein, and that the recovery in the Gallinger action was based on this demand and refusal, and that such conduct on the part of the sheriff was not within the condition of the bond, and consequently they were not liable therefor.

Upon the trial of the action the plaintiff claimed to have proved his case by the production, among other things, of the judgment-roll in this Gallinger suit. The defendants then, under plaintiff’s objection, proved by parol the ground upon which that suit was decided; viz., that the sheriff became liable for a conversion upon the attachment being vacated, and his refusal to give up the property upon a demand made after that event. Notwithstanding this evidence, the circuit court gave judgment for the plaintiff, which has been affirmed by the general term, and the defendants have appealed here. They claim (1) that the condition of their bond did not cover the facts upon which the judgment was founded in the Gallinger suit; (2) that the ground upon which the recovery was based was within the issues raised by the pleadings in that action; (3) that it was proper to show by parol what that ground was. It is beyond dispute that the recovery in the Gallinger suit was upon the sole ground above stated. The evidence upon the trial of this action as to what that ground was, is wholly uncontradicted, and consists of the stenographer’s minutes of evidence upon that trial.

As to the first contention of the defendants, was this act of the sheriff within the condition of the bond ? We think not. When the attachment was vacated, it became his duty, upon reasonable demand, to deliver up the property to the defendant, or to the person entitled to it, who in this case was Gallinger. Code, § 709. The bond indemnified the sheriff for his act in taking the property as that of the defendant in the attachment suit, and for his keeping it under such attachment, and refusing to give it up to Gal-linger or any one else. The property was originally taken by virtue of the attachment, and the writ was the only justification for its retention; and if, in truth, it -belonged to Gallinger, as he claimed, the writ would then furnish no justification for taking or retaining the property. The bond taken was intended to and did cover the risk of this taking and detention under the writ. It cannot be construed to cover a detention by the sheriff after the writ (which was his sole authority for ever taking and for continuing to keep the property) had been vacated. After such vacation the sheriff was bound to surrender the property upon reasonable demand, and his refusal to do so would be an illegal act, which it cannot be supposed the indemnitors in the bond proposed or assumed to indemnify against, and as to which, if they had, such bond would have been void to that extent. Griffiths v. Hardenbergh, 41 N. Y. 464.

As to the second claim of the defendants. The basis of the recovery in the Gallinger suit was fairly within the issues. Pleadings are to be liberally construed, with a view to substantial justice, or in other words, with a view to get out the real truth of the case, when it will not involve surprise or injustice to either party. The complaint in the Gallinger suit (which was brought several days after the attachment had been vacated) did allego a wrongful taking from Gallinger’s possession, on or about the eleventh of December and a conversion to the defendant’s use. It also alleged a demand made for a return, and a refusal by defendant. It then demanded judgment for the value of the property. The defendant answered by setting up the issuing of the attachment, and justified the taking and retention under that writ, and alleged that the assignment from Mrs. Briggs to Gallinger was void, as made with intent to hinder, etc., the creditors of the former. This answer did not set up new matter constituting a counter-claim, and did not call for a reply, and, under section 522 of the Code, such new matter was deemed controverted by the plaintiff by traverse or avoidance, as the case might be. Therefore, upon evidence by the defendant that the property was taken and held under the attachment as the property of Mrs. Briggs, the plaintiff could properly prove that it had been vacated, and a demand for the return of the property had been made thereafter, and had been refused before suit was commenced. If this were proper to put in evidence, the court could then decide upon its effect. It did so decide, and held the defendant liable for his conversion, or, in other words, for his retention of the property subsequent to the time when the attachment was vacated.

The defendants then make the third claim, that it was proper to prove by parol the ground upon which the Gallinger case was decided. When it does not appear from the record what was the precise ground upon which the case was decided, parol evidence thereof may be given, provided such ground was within the issues in the case. Wood v. Jackson, 8 Wend. ,9. We have just seen that this ground was within such issues."

The plaintiff herein makes some answers to these several' defenses, and he says that, as matter of fact, there was but one demand made by Gallinger for the goods after they were taken, and that demand was made on the day of their seizure by the sheriff, and he gave some evidence to that effect on this trial. The difficulty with this evidence is that it was not given on the trial of the Gallinger suit. The evidence is wholly uncontradicted as to what took place on the trial of that suit, and its only possible importance was to show the reason for the decision of the Gallinger suit, and that it was decided upon a ground not covered by the bond. As I say, the evidence on that trial was uncontradicted and conclusive, showing that Gallinger made a demand after the attachment had been vacated, and that there was a refusal of the sheriff to give up the property notwithstanding such fact, and that the action was decided on that sole ground.

The plaintiff herein also states that the case does not purport to contain all the evidence taken on the trial of the Gallinger case, and that, to support this judgment, it must be presumed that other evidence was given, and upon a point which was covered by the defendants’ bond; but the difficulty is that the language of the court on that trial, as proved by defendants, shows explicitly that the sole ground of recovery was the demand and refusal subsequent to the attachment being vacated. In the face of such language no such presumption can be indulged in. - It is also urged, in behalf of the plaintiff, that, even after the attachment had been vacated and demand made (cohceding for this purpose that a demand was made), still the sheriff was not bound to surrender the property forthwith. He says the sheriff was entitled to demand service of a certified copy of the order vacating the attachment, and to be paid his costs, fees and charges before a delivery could be claimed. Assume that the sheriff would be entitled to all these privileges, even including his costs (which he, as to the latter, probably would not be, in case of the writ being vacated), yet the evidence on the Gallinger trial was uncontradicted, that, when Gallinger made his demand for a return of the property after the attachment had been vacated, the refusal of the sheriff to deliver was not put on any of these grounds, but was absolute, unconditional and final, and placed solely upon the ground that he had a bond of indemnity, and it was no use to ask for a delivery. In the light of such facts the claim now made in behalf of the sheriff comes too late. It would have very likely constituted a defense to the Gallinger judgment, if proved on that trial, as having bear a position taken by the sheriff in answer to the demand for the property after the writ had been set aside. To prove it on this trial was useless, because too late, and no answer to the proof of what took place on the Gallinger trial, and what was the ground of that judgment. Nor is any defense made out by proof of the proceedings subsequent to the rendition of judgment in the attachment suit. Judgment was therein duly obtained February 12, 1881, and on that day an execution was issued thereon—nearly two months after the commencement of this action.

The sheriff under that execution proceeded to levy on the goods which he had attached and kept in his hands, and he sold them under such execution, and turned over the money to the attorney for the plaintiffs in the execution, who knew it came from the sale of those • goods. There is no evidence that these defendants ever knew one word as to where the money came from to pay a judgment in an action to which they were not parties, and none that any orders were given by any one to the sheriff as to what property to levy on. Issuing an execution without any directions as to how it is to be enforced, or as to what property is to be taken, implies only an authority to do a lawful act pursuant to its command (Welsh v. Cochran, 63 N. Y., 181); and the knowledge of the attorney in the execution as to where the money came from which he took from the sheriff, there being no proof of like knowledge by the plaintiffs in the execution when they received the money from him, would be no ratification, even as to them, of the prior illegal act of the sheriff in refusing to surrender the goods, much less on the part of these defendants, being equally ignorant. Clark v. Woodruff, 83 N. Y., 518.

Neither is the defense of the Gallinger suit by the defendants, at the notification of the sheriff, equivalent to a ratification. It does not appear that at that time they knew of the demand and refusal after the attachment had been vacated, and the pleadings in the Gallinger suit would not necessarily disclose that fact; but, even if they at that time did know of such demand and refusal, it nowhere appears that they knew of or approved it when it happened, or that they ever requested or expected the sheriff to so refuse. An attempt to defend the sheriff from the consequences of an illegal act, done without their request or sanction, cannot properly be set up as a ratification of such act, as between the sheriff and these defendants.

Upon a careful consideration of all the facts in this case, we are reluctantly brought to the conclusion that the judgment should be reversed and a new trial ordered, with costs to abide the event.

AH concur, except Huger, 0. J., dissenting.  