
    
      Van Cleef and others against Fleet.
    An ¡nqui?¡~ sheriff^on'3' a pe,™,of goods levied on under an cxecuti°n> not conclusive of the right of property, aithough it may excuse the she* riff for not proanífofratum!
    if the execution", off fer, in writing, to indemnity-the sheriff, he proceed and not cxcu”" ¡!-'¡™gean mquff Sltl0n"
    When a debt- or confesses judgment,and, afterwards, fraudulently purchases and delivered ° pay?ngW‘fo°ut tentiónto'súh^ecution “„enthcreliitcl" the fj*1®to the goods does not Become vested in the purchaser, and they, not^b”"taken aSsthiin.10"
    THIS was an action on the case for a false return to a Jft. fa., brought against -the defendant, late sheriff of the city The cause was tried before Mr. and county of New-York. J. Platt, at the New-York sittings, in December, 1815.
    
      Morris and Ryer executed to the plaintiffs a bond, conditioned for the payment of 8000 dollars and a warrant of attorney to enter up judgment thereon, which were dated - the 26 th of July, 1813, and judgment was entered on the 6th of August, on which day an execution was delivered to - the defendant, and he was directed to levy the sum of 7,107 dollars and 70 cents. The defendant returned to the exexmtion, that he had levied and paid to the plaintiffs the sum 7 vi Of 3,225 dollars and 4 cents, and as to the residue, nulla bona. It was admitted, on both sides, that other goods had been seized and taken, in the store occupied by Morris Ryer, but which had been claimed by certain of their creditors, for whose benefit this suit was defended, and delivered up to them.
    The defendant’s counsel, at the trial, offered in evidence 7 v an inquisition, taken by the defendant, on the 20th of August, 1814, finding part of the property levied on, to be the property of Schuyler Bradford, two of the creditors of Morris f Ryer. This evidence was objected to on the part of tlie plaintiffs ; and their counsel read a letter to the defendant, dated the 2d of September, 1813, in which they express their intention not to attend the trial of the claims of pro-1 perty before him, -and conclude, “ We have now again to , , ' „ , ° desire you to proceed to the sale oí the goods levied on, including those claimed by Schuyler Bradford, and wc are ready to indemnify you for so doing to your entire satisfactian. Should you decline to sell on the above terms,“the refusal must he at your own peril, as must be whatever other steps you choose to take in this business ; as we wish you distinctly to understand that we hold you responsible for the goods levied on. and in your possession unsold.” The judge, overruled the objection, and the inquisition was ad1m^¡-gq jn evidence. The plaintiffs’ counsel then disclaim-ed any intention of charging the sheriff beyond the actual value of the goods; and when the inquisitions relative to the claims of the other creditors were offered in evidence, they were, on that ground, rejected by the judge. It was proved, on the part of the defendant, that several of the goods in question, were purchased to be paid for, in cash, between the 26th of July, 1813, when the bond and warrant of attorney were dated, and the 6th of August, when judgment was entered. It was also proved, that on a Sunday in July, or August, 1813, before the purchases from the different claimants, an inventory was taken, in the store of Morris fy Ryer, by them, and Moores, one of the plaintiffs, and his clerk : that, afterwards, Weed, one of the claimants, . sent his clerk to purchase a piece of goods that Morris $• Ryer had before bought of him : that Morris asked a price which the clerk did not think proper to give until he had consulted with Weed; and after he went away, Morris put the goods into a drawer, and directed his clerk to tell Weed’s clerk, if he returned, that he had sold them to Moores, who was then present: that on the 5th of August, Lovel, another of the claimants, repurchased of their clerk goods which he had sold tp Morris Ryer : and that Moores came to the store and asked the clerk if he. had sold goods to Lovel, to which, on his replying that he had, Moores abused the clerk.
    The defendant’s counsel offered to prove various sales between the 26th of July, and the 6th of August', for cash, but which was never paid; and offered other evidence of fraud in the transaction. The judge overruled the testimony, and declared that the frauds of Morris Ryer could not affect the plaintiffs unless they were privy to them, or had combined to commit them, of which there was no evidence to go to the jury; and that he should chárge the jury that in judgment of law, the plaintiffs were entitled to recover. A verdict was taken fpr the plaintiffs, by consent, subject to the opinion of the court.
    
      Colden, for the plaintiffs.
    We are-aware that the court, in Bayley v. Bates, (3 Johns. Rep. 185.) decided that the inquisition will excuse the return of nulla bona, where the sheriff acts bona fide ; hut the court intimate, in that case, that if the sheriff should refuse an adequate indemnity offered by the plaintiff, he would be bound to proceed and sell, or be liable for a false return. Here was a written offer of indemnity, and the sheriff ought to have stayed proceedings on the writ of inquiry, until he had inquired whether the security offered was adequate. He has not acted with impartiality, or bona fide. If there was any fraud in Morris & Ryers, the plaintiffs were not privy to it.
    
      Hoffman, and T. A. Emmet, contra,
    relied on the case of Bayley v. Bates, the principles of which were fully recognised in Townsend v. Phillips. (10 Johns. Rep. 98.) They contended, that the power of calling a jury to inquire as to the property," is given to the sheriff merely for his protection, and for no other purpose ; it ig not intended for the benefit of the party. The inquisition, when taken, is perfectly conclusive as regards the sheriff. He is not bound to accept an indemnity, but certainly nothing short of the most ample security.
    But, further, no property was vested in Morris & Ryer. The transaction was fraudulent, and the plaintiffs were privy to the fraud. In Allison v. Matthieu, (3 Johns. Rep. 235.) where goods were obtained fraudulently, and by collusion, under a pretence of purchase, the court say, that the fraud avoided the contract of sale. (The counsel here discussed the facts in thé case.) The plaintiffs were not bona fide purchasers. The sheriff was commanded to seize the goods of Morris Ryer, and if the goods in question were not the property of Morris & Ryer, the plaintiffs could acquire nothing by the execution.
    
      Wells, in reply.
    The inquisition does not determine the question of property. It is a mere precautionary measure of the sheriff to protect himself from vindictive damages. The real owner, notwithstanding the jury of inquiry may find the property to be in the debtor, may bring his action against the sheriff, and if he proves his right to the goods, he will be entitled to recover the full value of them fromfllc sheriff. Then, if the inquisition be not conclusive * when found in favour of the plaintiffs, why should it be so when found against them 1 There is no reciprocity, nor consistency m making it a bar in one case, and not in the other. In Townsend v. Phillips, the court say the plaintiff could not justify himself, by the inquisition, for taking goods which did not belong to the party against whom the execution issued. But if it is a bar, it must be so on certain conditions," or under certain circumstances; as, where the plaintiff has submitted to the inquiry, though he is not bound to do so, or where he is passive, and tells the sheriff to proceed at his peril. Not so, where he protests against a jury of inquiry, and tenders indemnity to the sheriff. In the case of Bayley v. Bates, it does "not appear what was the indemnity offered. No doubt the court must have considered it insufficient. If to a verbal offer of indemnity, the sheriff should answer, that he will take no security at all, the plaintiff, clearly, would not be bound to tender any, and the sheriff would proceed at his peril.
    Again ; the sheriff might have applied to the court for instructions how to proceed. He might have filed a bill of interpleader. He might, even after the inquisition, have gone on and sold the property, and held the proceeds subject to the order of the court.
    It is true that fraud may be inferred from circumstances, bfit they must be such circumstances as lead irresistibly to that conclusion. Fraud is never to be presumed. The jury are not authorized to speculate and conjecture as to facts and motives. There was not enough shown to let the cause go to the jury, for the purpose of finding whether there was fraud or not.
   Van Ness, J.

delivered the opinion of the court. The inquisitions of the 2d of September were properly rejected, the plaintiffs having confined their claim of damages to the actual value of the goods. Such inquisitions are not conclusive on the question of property, though, in some cases, and under certain qualifications, they will excuse the sheriff for not proceeding to sell and protect him from a suit for a false return. This was so decided in the case of Bayley v. Bates; (8 Johns. Rep. 185.;) but it is there strongly intimated, that if the sheriff should refuse an adequate indemnity, the court would hold him bound to proceed and sell. Many of the cases cited in Bayley v. Bates show, that if the plaintiff in the execution tender an indemnity to the sheriff, it is his duty to proceed. It would be intolerable to consider these inquisitions as decisive of the right of property, considering the manner in which they are taken, and the great abuse to which such a proceeding is liable. I well recollect that in the case of Bayley v. Bates the offer to indemnify the sheriff was verbal, and very loose and unsatisfactory, and not such as the sheriff had a right reasonably to exact; and that it was for that reason the sheriff was held to be excused for returning nulla bona, after he had held an inquest. Here the tender of indemnity was made in writing, with all due solemnity, and in such a way as ought to have induced the sheriff to proceed in the sale.

The evidence of fraud in Morris and Ryer was very strong, and there was, also, some evidence to show that Moores, one of the plaintiffs, was privy to it. I think there was sufficient evidence to entitle the defendant to the opinion of the jury upon it, and that the learned judge should have submitted this part of the case to them. It was by no means so clear a case for the plaintiffs as to entitle them, “ in judgment of law,” to a verdict. On (his ground, without noticing some minor points which have been discussed, I think that there ought to be a new trial.

It may be proper, however, to remark that, if on a future trial of this cause the jury shall be satisfied that Morris and Ryer obtained the goods in question by fraud, that then, according to the doctrine established in the case of Allison, v. Matthieu, the title to the goods never was vested in them, and they, consequently, were not liable to be taken in execution to satisfy the judgment in favour of the plaintiffs.

bfew trial granted, with costs, to abide the event of the suit.  