Opinion by GROVER, J.

the land away from him; that he could not hold it if she came. The case states that this evidence was here objected to, on the ground that it was the declaration of Reeves after he had sold; that the objection was overruled for the present, and to be considered in the charge; and Defendant's counsel excepted. The judge, in substance, charged the jury that he could not tell certainly whether these declarations were made before Reeves sold to Jones or not. That if he could, and it was after he sold, he should have excluded it; if before, it was competent. He further charged that if it was after he sold to Jones, but before he gave up possession, it was still competent. I think the learned judge fell into an error in determining the question as to the competency of this evidence. It was his duty to determine that question. He had no right to submit it to the jury upon any facts to be found by them. Were this so, a party could never know what evidence had been received, and what rejected. Still, if the evidence was competent, the party objecting could not complain that its admissibility was left to the jury. No injury would be done to him. The evidence should have been held competent by the Court, and the chance given for its rejection would be an error in favor of the party excepting. But the evidence should have been rejected by the judge. The Plaintiff introducing the declaration of Reeves, that proved as against him that he had sold the lot, and, the presumption was, had given up possession. This presumption was not overcome, for there was no evidence that Reeves ever had anything to do with the land after this conversation. The plain inference from his declarations was, that Reeves had parted with all his interest in the land and delivered possession to Jones. There was no ground, therefore, upon which his declarations could be received to defeat or impair the title of Jones, and receiving them and submitting them to the jury whether they should be considered as evidence, was error. It was for the Plaintiff to show that evidence offered by him was competent. It was not enough to create a doubt in the mind of the judge, and then leave it to the jury to determine how the matter stood. There can be no doubt but that the evidence tended strongly to the prejudice of the

Opinion by GROVER, J.

Defendant. The jury, after testimony to his disclaimer of title, and declaration that Mrs. Kissam was coming, and would hold the land, and that for these reasons he had sold, would regard it as conclusive that he had not and did not claim title, but that the land was Mrs. Kissam's.

This renders it unnecessary to examine any of the other exceptions. The judgment should be reversed, and a new trial ordered.

JOEL TIFFANY,

State Reporter.

Opinion by HUNT, J.

ISRAEL ELIAS AND AARON ELIAS v. BENJAMIN

FARLY.

Levy by Sheriff, what sufficient.

It is a sufficient levy if the sheriff having in his possession an execution against the goods and chattels of the Defendant, come in view of the goods, and have them within his control, if he exhibit the execution, declare the levy, and make a memorandum of the same upon said execution. A manual taking of the goods in unnecessary.

THIS was an action of trespass for taking and converting a stock of drygoods in the village of Lockport, Niagara County. The Defendant was the sheriff of the county of Niagara, and justified the taking by virtue of several judgments and executions against Samuel M. Weiner, claiming the goods seized to be the property of Weiner. The jury found a verdict for the Defendants, upon which judgment was perfected. The Plaintiffs appealed to the General Term of the Eighth District, where the judgment was affirmed. They now appeal to this Court. The facts necessary to an understanding of the points raised are stated in the opinion of the Court.

P. L. Ely for Appellants.

W. A. Butler for Respondents.

HUNT, J.-Numerous exceptions were taken during the trial. Some of them are conceded by the Appellants to be without merit. I have examined them all with care, but do not think it necessary to discuss any of them, other than the exceptions taken to the charge of the judge. Weiner was a merchant in Lockport, and the owner of the goods in question. In November, 1857, he made an assignment to one Barr. The assignment was alleged to be fraudulent. Testimony was given upon this question, and the jury by their verdict decided that it was fraudulent. On the 23d of January, 1858, the deputy sheriff made the levy under

Opinion by Hunt, J.

which the goods were afterward removed and sold. It is in relation to the validity of this levy that the question is made. On the 26th day of January, Barr made a sale to the Plaintiffs of all the goods remaining unsold, which sale, it is alleged, was also fraudulent. The deputy sheriff testified that, having these executions in his hands, he presented the same to Weiner at his store for payment; that he levied on the goods at that time; that he told Weiner of the levy at the time in the store, and that certain clerks named were also in the store. On being cross-examined, he further stated: "I made the levy on the 23d day of January; I asked Weiner to turn me out property on the executions; he said he had no property; I told him I was authorized to levy on that stock of goods; I told Weiner I had made a levy on the stock of goods." On the same day he endorsed upon the executions, "Levied, January 23d, on all goods in the store lately occupied by S. M. Weiner." Barr, the assignee, was not present at this time.

In substance, the sheriff, with the executions in his possession, went to the person having charge of the property, or who, with others, was in its apparent possession, and in view and control of the goods, informed such person that he levied on the goods, and endorsed a memorandum of such levy upon the executions. No notice of the levy was given to Barr, the assignee. It was sufficient to give it to the person in charge. The jury have found that, as to creditors, the title was in Weiner, and not in Barr. No notice to Barr could have been necessary. The Plaintiffs' counsel requested the Court to charge the jury that there was no evidence of a sufficient levy upon the goods to entitle the Defendant to hold the goods. The Court declined so to charge, and the Plaintiffs excepted. The Court charged the jury that it was not necessary for an officer to take manual possession of the goods, or to assume the entire control over property, to constitute a valid levy; that if the sheriff went into the store where the goods in question were, having in possession the executions for the purpose of levying on the goods, and found Weiner in the store, apparently in possession, exhibited the executions to Weiner, informed him that

Opinion by HUNT, J.

he levied upon the goods, and he then levied and made a minute upon his executions, this constituted a sufficient levy. To this the Plaintiffs excepted. I am of the opinion that the evidence showed a sufficient levy, and that there was no just ground of exception to the charge (Camp v. Chamberlain, 5 Denio, 198; Bond v. Willett, 31 N. Y. R. 102; Roth v. Wills, 29 N. Y. R. 471). In the latter case, the rule is thus laid down by Mullin, J.: "To constitute a valid levy, the officer must enter on the premises where the goods are, and take possession of them, if that be practicable; if not, then he must openly and unequivocally assert his title to them by virtue of his executions. It is not essential to the validity of the levy that he take actual possession of the goods, or that he remove them from the custody of the debtor. The test of a valid levy is whether enough has been done to subject the officer to an action of trespass, but for the protection of the execution." In that case the Defendant went to the Plaintiffs' store, saw the goods, asserted his right to them by virtue of his levy, in the hearing of one of the Plaintiffs, and subsequently the fact that a levy had been made was endorsed on the executions. (See also the explanation of the rule as given by Selden, J. at p. 488.) The case of Roth v. Wells was elaborately argued, and the reported opinions show that all the authorities on the subject were before the Court, and were carefully considered. It is a clear authority in favor of the Defendant, and it is not necessary to go further in the citation of cases.

It appeared from the assignment of Weiner that a preference was given therein to one George Judson, to the amount of sixty dollars, for rent. On this branch of the case the Court charged the jury that if Weiner preferred Judson for this sum for the occupation of the dwelling-house used by him, before and subsequent to the assignment, even though a bonâ fide liability, with intent that the same should accrue to Weiner's future benefit, by securing to himself and family the future use of said dwellinghouse, without paying rent or being liable therefor, the assignment was void. To this charge the Plaintiff excepted. The law of this proposition is clearly sound (2 Coms. 365; 4 Coms. 211;