Dunderdale a. Sauvestre.

the instructions to the sheriff was to avoid the useless expense of keeping a man to take charge of the goods.

II. At the time these instructions were given, Dunderdale was not a judgment-creditor. No fraud upon him was proved or pretended.

III. The sale was made under Jacot's execution, and within. sixty days from its issue. It could not have been compelled to be made previously.

IV. There was no request to defer the sale. This case is, therefore, essentially different from the cases, Storm a. Woods (11 Johns., 110); Kellogg a. Griffin (17 Id., 274); Kimball a. Munger (2 Hill, 364), in which the general rule is laid down. (See Russell a. Gibbs, 5 Cow., 390; Levy a. Wallis, 4 Dall., 167.)

V. It was not necessary that the sheriff should remove the goods. The levy was complete. (Ray a. Harcourt, 19 Wend., 495; Rew a. Barber, 3 Cow., 272.)

Buckingham & Swift for the respondent, Dunderdale. The circumstances in this case amount to collusion for delay. (Paget a. Perchard, 1 Esp. N. P., 205; Hamilton a. Russell, 1 Cranch, 310; Roberts on Frauds, 549; Tidd. Pr., 919.)

BY THE COURT.*-BRADY, J.-The attorney for the plaintiff sent with the execution issued herein, a paper, in which he stated: "It is the desire of the plaintiff to simply make a levy, so as to claim a preference. There is no need of keeping a man in charge. I am sure nothing will be removed." The object of the paper, as appears upon its face, and the effect of it upon the sheriff, was necessarily delay. It was equivalent to saying: "After the levy don't remove the property, and don't sell until some other process is received." This is apparent from the declaration that it was the desire of the creditor simply to make a levy to secure a preference, thus leaving the property in the possession and under the control of the defendant, and relieving the sheriff from the duty of removing it, or exercising any dominion over it. To constitute a levy on personal property, the officer must assume dominion over it, having the property at the time within his power, and subject to imme

* Present, DALY, F.J., BRADY and HILTON, JJ.

Dunderdale a. Sauvestre.

diate seizure. (Green a. Burke, 23 Wend., 490, and cases cited; Camp a. Chamberlain, 5 Den., 198; Dresser a. Ainsworth, 9 Barb., 619.)

In this case the dominion, as in the case of Price a. Shipps (16 Barb., 585), was a qualified dominion, because the custody of the property was conferred upon the debtor, and he permitted to employ it as he thought proper. But aside from that view of the levy itself, it is clear that the directions were intended to delay the execution of the process, and it became, therefore, dormant. (Whipple a. Foot, 2 Johns., 418; Storm a. Woods, 11 Zb., 110; Kellogg a. Griffin, 17 Ib., 274; Knower a. Barnard, 5 Hill, 377; Price a. Shipps, 16 Barb., 585; Russell a. Gibbs, 5 Cow., 390; Benjamin a. Smith, 12 Wend., 404.)

Although the application of the rule by which executions are deemed to be dormant depends upon the circumstances of each particular case, and the discussion of the rule in the adjudged cases has thrown around it some confusion, if not obscurity, it is nevertheless well settled, that if the execution be accompanied by instructions, from which the fair inference is that the debtor is to be left in possession of the property levied upon, and the sale thereof delayed until rendered necessary by the pressure of other process, the execution becomes dormant.

It must

not be used as a cover. There must be an absolute intention to collect the judgment in the ordinary legal mode. Where a levy is made to secure a preference, and the debtor permitted to remain in possession and to exercise control, no such intention can be said to exist.

The order at special term should be affirmed.

DALY, F. J., concurred.

HILTON, J. (dissenting).—I do not concur in the view that the execution in favor of Jacot became dormant because the attorney, at the request of the defendant, and without the knowledge of his client, addressed a note to the sheriff, in substance informing him that there was no need of going to the expense of placing a keeper in charge of the property levied on, as the defendant could be trusted with its safe-keeping, and that he would not remove it.

For such an act of humanity and confidence in favor of a

Bucknam a. Brett.

debtor, I am not prepared to say that the creditor, whose debt and judgment is wholly unimpeached, forfeits all rights acquired by a valid levy under an execution issued by him.

Another, and it seems to me a fatal objection, to holding that the execution of Jacot and the levy thereunder was dormant, is, that it appears the goods have been actually sold under it, and the proceeds now in the hands of the sheriff, which Dunderdale seeks to have paid over to him, have resulted from such levy and sale.

In my opinion, these funds belong to Jacot, and should be paid over to him.

BUCKNAM a. BRETT.

Supreme Court, First District; General Term, September, 1861. PARTIES.-JOINDER OF PLAINTIFFS.TRIAL.

In an action for the conversion of personal property, brought by tenants in common, if one of the plaintiffs dies pending suit, the action should be continued by the survivors, without joining the executor of the deceased plaintiff. This was the rule at common law, and it has not been repealed by the Revised Statutes nor by the Code.

It seems, that all common-law actions to enforce the rights of joint owners or tenants in common, where one of them has died, must be brought in the name of the survivors only.

A distinct defence, not pleaded, cannot be proved at the trial.

Appeal from a judgment.

This action was commenced by S. Bucknam, S. B. Hume, and E. T. Bucknam, as part-owners of a vessel, to recover damages for its conversion by the defendants. Before the answer was served, E. T. Bucknam died, and his death being suggested on the record, the defendants answered, pleading the non-joinder of the personal representatives of the deceased as a defence. On the same ground they moved at the trial to dismiss the complaint, which motion was denied.

Bucknam a. Brett.

The defendants also offered to prove at the trial, that the conversion complained of consisted in the seizure of the vessel under an attachment against "John Doe and Richard Roe," and also "offered to claim" that these plaintiffs were intended by those names. No such defence having been pleaded, the evidence was excluded; and the plaintiffs had a verdict. The defendants appealed.

C. A. Nichols, for the appellants.-I. The court erred in refusing to dismiss the complaint, and in holding that Ezra T. Bucknam was a partner in the ownership of the brig, the shareholders in a vessel being, in the absence of positive agreement for partnership (of which there is no evidence in this case), tenants in common, and not joint-tenants or partners, and the representatives of Ezra T. Bucknam were entitled to the absolute control of the interests and property of the decedent. (Story on Part., § 417, and note; Collyer on Part., bk. 5, ch. 3, § 1; 3 Kent's Com., 5 ed., 151; Abbott on Shipping, § 97, and note; Nicoll a. Mumford, 20 Johns., 611; French a. Rice, 24 Pick., 13; Jackson a. Robinson, 3 Mason, 138; Patterson a. Chalmers, 7 B. Munroe, 595.)

II. The action should have been continued by the personal representatives of the deceased owner, they being the persons entitled to recover for the shares of the decedent, and therefore the real parties in interest as to that share. 1. Section 111 of the Code introduces a radical change in the mode of bringing actions, abolishing all technical rules as to parties, and substituting the practice in equity, of making plaintiff all those who are entitled to the thing recovered or relief obtained. (Wallace a. Eaton, 7 How. Pr., 99.) 2. The ancient rule of common law, that the survivor in case of trespass to real estate was entitled to bring an action for himself, was technical, and not consonant with any rule of practice known in courts of equity, and is not applicable; for it was only rendered necessary by the rule of common law, under which such an action died with the person; and there was no severance in such an action, because the amount of injury to each of the co-tenants was not ascertained and determinate. The statute makes such a cause of action survive, and gives to the personal representatives of each owner the right of action for the conversion of his

Bucknam a. Brett.

share. (3 Rev. Stat., 5 ed., 202; Dyckman a. Allen, 2 How. Pr., 17.)

III. The present action is no bar to an action by the personal representatives of Ezra T. Bucknam, to recover the value of five-eighths of the vessel.

I. T. Williams, for the respondents.-I. The defendants askėd for a dismissal of the complaint or a nonsuit; as if-even assuming that the death of one of several plaintiffs operated to abate the suit-such abatement could be taken advantage of by motion for nonsuit on the trial.

II. Ought the representatives of Ezra T. Bucknam to have been brought in, after his death, and made co-plaintiffs in the action? It is insisted that they ought not. This is strictly an action at law, an action for taking and converting the personal property of the plaintiffs,-in which damages, measured by the value of that property, were sought. In such an action it is not possible to unite parties, a part of whom sue in their individual capacity and the remainder in a representative character. (3 Bouvier Inst., 162; Morehouse a. Ballou, 16 Barb., 289; 18 Ib., 592; 2 Duer, 626, 650; 1 Mass., 480, 133; Harden, 480; Minor, 364; 1 Bibb., 462, 547; 3 Ib., 261; 5 Alabama, 421.)

III. In actions at law for injury to personal property, all the parties injured must join as plaintiffs, if they be all living. If any be dead, the action must be brought in the name of the survivor or survivors. If either of the plaintiffs die pending the action, his death should be suggested upon the record, and the suit will proceed in the name of the surviving plaintiffs. Bouvier says (3 Inst., 175): “If one of several plaintiffs in an action, in form ex delicto, dies pending the action, the suit does not abate, and the survivor may prosecute it to judgment." The same is said 2 Saund., 72, i.

BY THE COURT.*-CLERKE, P. J.-In actions ex contractu, where one or more of several parties having a joint legal interest dies, whether they are or are not, in the commercial sense of the term, copartners, the action can only be maintained

* Present, CLERKE, P. J., SUTHERLAND and LEONARD, JJ.