Beardsley v. Frame

Hayne, C. This was an action against a constable and the sureties on his official bond for damages for the seizure of certain personal property claimed by the plaintiff as assignee for the benefit of creditors of one Wicktor Ohlson. The defendants had a verdict and judgment, and the plaintiff appeals.

The defendant justified under two writs of execution, one of which was in favor of one Hazletine, and the other of one Hobbs. The proceedings in Hazletine’s suit were ruled out, but the proceedings in the Hobbs suit were admitted, and we think properly so. The objection made to them is, that there was no proof of the judgment. But the justice’s docket, containing a minute of the judgment, was read, and this was sufficient evidence of the judgment. (Code Civ. Proc., secs. 911, 912.) And if the constable acted under execution upon a valid judgment, it was a sufficient justification, and shows that he was not a trespasser. So far as this action is concerned, therefore, it does not matter that the Hazletine judgment was ruled out.

But it is contended that, at the time the Hobbs judgment was rendered, the judgment debtor had already [135]assigned his property to the plaintiff; and this brings up the question of the validity of the assignment. It must be assumed, in support of the verdict, that the jury found that it was not valid; and we are unable to say, upon the record before us, that this finding can be disturbed.

In the first place, it is questionable whether the purpose for which the assignment was made is one sanctioned by law. The statute provides that “an assignment for the benefit of creditors is void against any creditor of the assignor not assenting thereto. .... 5. If it confer upon the assignee any power which, if exercised, might prevent or delay the immediate conversion of the assigned property to the purposes of the trust.” (Civ. Code, sec. 3457.) And the deed of assignment provides, among other things, that the assignee shall “run the saw and stave mill belonging to the said party of the first part, and to saw lumber and staves, employing men to do so, and to sell the same, shipping the same to San Francisco, or otherwise, as to the trustee shall seem best, and after paying the necessary expenses therefor, to apply the balance of the receipts arising from said sales to the payment of all of the said debts then due,” etc.

But there is some evidence tending to show that Hobbs consented to the assignment, although he did not sign the deed, as most of the other creditors did; and therefore we do not rest our opinion upon this ground.