Judson v. Cook , 11 Barb. 642 ( 1852 )

By the Court,

Shankland, J.

For the purposes of this motion to set aside the nonsuit, it must be taken for granted that the plaintiff had consummated a levy by virtue of the execution in his hands, and was legally entitled to the possession of the goods, and that the taking and conversion by McCann, under the attachment and execution in favor of the bank, was tortious:

The admitted rule of law is, that all who aid, command, advise or countenance the commission of a tort by another, or who approve of it after it is done, if done for their benefit, are liable in the same manner as they would be if they had done the same tort with their own hands. (19 John. 381. Bishop v. Ely, 9 Id. 294. Morgan v. Varick, 8 Wend. 587. Coats v. Darby, 2 Comst. 517. 1 Chit. Pl. 67.)

Was there sufficient evidence to go to the jury in this case, that the defendant Cook did any act to make him liable, within the above rule of law 7 I am clearly of opinion that he did. In the first place, he was president of the bank, the plaintiff in the suit, whose process he undertook to control; and he may properly be assumed to have been a stockholder in the corporation, and interested in the avails to be collected in that suit. In the second place, when he was inquired of by the constable, for directions, he answered, “ Do your dutyan expression which, when taken in connection with the other facts in the case, may and probably did mean, go on and sell. At all events, his meaning was a proper question for the jury. Again; when informed by Vanderlip of the plaintiff’s claim to the property, and on being asked for directions whether to sell the goods on the bank execution, he directed the attorney to examine the question and facts, and act his judgment. What was this direction but saying to the attorney, go on and sell, if in your opinion we can hold the property ? The attorney decided to sell, and the defendant is as responsible for the directions which the attorney gave, in pursuance of the discretion vested in him by the defendant, as he would have been if he had given the same directions in person. Again; after the attorney had given directions to sell, in pursuance of the discretion vested in him by the defendant, the latter attended the sale, and by his presence countenanced the transaction, not by his silent presence alone, but by actually bidding off some of the property. In the case of Babcock v. Gill, (10 John. 287,) it was held that where the defendants purchased property of one Whitney, knowing of the plaintiff’s claim to it, it was a conversion, for which they were liable. In the present ease the defendant purchased a portion of the property sold by McCann, knowing of the plaintiff’s claim. This was assuming a control of it in defiance of the plaintiff’s claim, and was a conversion of the property thus purchased.

[Delaware General Term, July 13, 1852.

Mason, Crippen, Shankland and Gray, Justices.]

Again; when the plaintiff’s agent called on the defendant, to relinquish the levy on the bank execution, he declined to do so.

He did not decline on the ground that he had not the control of the execution, nor for any other special reason. He having the control of the execution, his declining to relinquish the levy was, under the circumstances of this case, an assertion of the right to hold the property in defiance of the plaintiff’s claim.

Taking' the whole evidence together, it makes out a strong case, connecting the defendant with the conversion; and the fact that he acted as the agent of the bank, does not in the least diminish his liability.

There should be a new trial granted, with costs to abide the event. (This action was commenced in 1846, and before the code.)

New trial granted.