Pike v. Acker

By the Court,

The execution against Samuel was no justification to the sheriff for seizing the goods of Solomon ; and if it could be shown that the plaintiff (Solomon) was one of the joint contractors who were intended to be sued, as was probably the fact, it would not help the defence. The difficulty would still be, that there was no execution against the person whose goods were seized. *92(Griswold v. Sedgwick, 6 Cow., 456; Scott v. Ely, 4 Wend., 555.) If the plaintiff had been served with the declaration at the suit of Barker & Holt, and had appeared in that action without pleading the misnomer in abatement, his goods might then have been taken by virtue of the execution. He would then have admitted that he was properly sued by the name-of Samuel, and would be estopped from afterwards gainsaying it. (Crawford v. Satchwell, 2 Str., 1218; Cole v. Hindson, 6 T. R., 234, and 235-6, per Kenyon, C. J.) But here it does not appear that the plaintiff was sued, or that he appeared in the original action. - His offer to show that in point of fact he had -not been served with either process or declaration was more than was necessary to his success. It was for the defendant to show that the plaintiff had been sued. In Reeves v. Slater (7 B. & C., 486), John Stowe Lundie had confessed a judgment by the name of John Stone Lundie, and it may well be that he could not question the levy of an execution upon his goods.

The deputy says he showed the execution to the plaintiff at the time he made the levy. But the fair' inference from the facts is, that the plaintiff did not notice that he was not the party named in the execution; and there is no pretence that the deputy made the levy in consequence of any admission of the plaintiff that his goods were subject to the execution. The plaintiff told the deputy he had not .been served with process, and he soon afterwards swore to that fact and moved to set aside the judgment. At this time he seems to have been under the impression that there was a judgment and execution against him,; but when he afterwards discovered the fact to be otherwise, he brought this action. The defendant could not make out an estoppel -without satisfying the jury that the plaintiff knew the execution was against Samuel, and then either admitted his liability in express terms, or stood by and allowed the deputy to make the levy, without informing him of the error.

The affidavit which the plaintiff made, if wholly unexplained, would not conclude 'him. A motion to set aside a judgment for irregularity is not an appearance in the action. It is quite too late to appear to the action after judgment *93has been perfected. The plaintiff was only in court for the purposes of the motion. And besides, the levy was made— the wrong for which the action was brought had been done —long before the affidavit was made. When a party has made an admission for the purpose of influencing the conduct of another, and the other party has acted upon it, the admission will operate as an estoppel in pais. But admissions which come after the act are but evidence, more or less cogent according to the circumstances of the case. They do not go back, and make an estoppel by relation.

But the affidavit, as explained by the attorney who drew it, proved little or nothing against the plaintiff. He probably did not know that he was misnamed in the title and beginning of the affidavit, which seem not to have been read to him.

New trial granted.