Thornburgh v. Hand

At the January Term, Murray, C. J., delivered the opinion of the Court—Terry, J., concurring.

This was an action of replevin. The defendant justified the taking under a writ of attachment.

Two errors are assigned by the appellant; First, the refusal of the Court to permit the defendant to ask a witness, on his cross-examination, “ in whose possession the property was some six months before the seizure thereof by the defendant;” and second, in refusing to admit the writ of attachment and note, with parol proof that it was the same indebtedness on which the suit was brought, out of which the attachment issued, as a sufficient predicate on which to attach the sale of the plaintiff.

Upon the first point there can be no doubt of the correctness of the ruling of the Court below; a witness cannot be cross-examined, except in reference to matters concerning which he has been examined in chief.

The questions asked of the witness, were with regard to the possession of the-property at the time it was taken by the defendant, and an examination of the fact of possession six months before, was in no way responsive to the direct examination. Even if the rule were different, the question was improper until the defendant had first laid the foundation for impeaching the sale.

The plaintiff contends that the object of the question was to establish the fact, that the plaintiff was acting as the agent of Burtis, who, it is alleged, was the owner in fact of the property. Whatever may have been the purpose of the question, the object was not stated to the Cout, and in the absence of an explanation on the subject, the object was properly excluded. The defendant was not injured by this ruling; for if it was necessary to establish this fact in defence, he might have recalled witness at a subsequent stage of the proceedings.

The second point is not without difficulty, and is important as a rule of practice.

It is well settled that a creditor at large cannot impeach a sale of property by his debtor to a third person, until he has obtained judgment, taken out execution, and the same has been returned unsatisfied; or unless he claim by virtue of some writ or process giving him a specific lien thereon; for as between the parties the sale is valid. An officer who seizes property in the hands of the debtor, may justify under the execution or process, but when he takes property from a third person who claims to be the owner thereof, if on execution, he must show the judgment and execution; if on attachment, the writ of attachment, and, as we think, the proceedings on which it was based.