Tomkins v. Haile

3 Wend. 406

Opinion

By the Court,

Marcy, J.

The defendant attempted to shew that Stevens was in fact the owner of the property, by proving that he had possession of it when it was levied on, had loaned it, and offered to sell or exchange it. This evidence would not, I think, have warranted the jury to find that there had been a change of property. How long Ste-yens had been in possession does not appear; but it could not jlave been long. No acquiescence of the plaintiff in the possession of Stevens, nor any recognition of his right to possess ^ was shewn' We cannot, therefore, say that the judge erred in regarding these facts as amounting to no proof of property in Stevens.

There is scarcely a pretence to question the conversion. The constable acted under the express direction of the defendant in seising and selling the property, and his acts are in law the acts of the defendant. In this respect there is an' essential difference between this case and that of Storm v. Livingston (6 Johns. R. 44.) The sale here was an actual conversion by the defendant.

Motion for a new trial denied.