Warring v. Loomis
New York Supreme Court
Certiorari to a justice’s court held by Rensselaer Lamb, Esq., now county judge of Cattaraugus county, certified by him to this court. Loomis sued Warring and others in trover, for converting fifteen of his sheep. Warring was a constable, and had an execution against the property of Loomis. There was a levy upon “thirteen sheep” endorsed upon the execution. On the day of sale the defendants below attended, and the plaintiff’s sheep, numbering 21 or 22, were present.
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Certiorari to a justice’s court held by Rensselaer Lamb, Esq., now county judge of Cattaraugus county, certified by him to this court. Loomis sued Warring and others in trover, for converting fifteen of his sheep. Warring was a constable, and had an execution against the property of Loomis. There was a levy upon “thirteen sheep” endorsed upon the execution. On the day of sale the defendants below attended, and the plaintiff’s sheep, numbering 21 or 22, were present. The constable offered for sale by virtue of the execution, thirteen of the sheep, without designating them. On being asked by a…
1Opinion of the Court
By the Court, Marvin, J.
The sale gave no title to the purchaser. There was no indenlification of the property. The specific sheep were not pointed out. It was the sale of a right to select out 13 sheep from the flock. A constable has no power to make such a sale or contract. If the owner should make such a contract, no title would pass until the selection was made. Until that act was done the contract would be ex-*486ecutory. At a sale of personal property by a public officer, the property must be present; and it must be pointed out and specifically designated, so that the purchaser may know…
2Cases cited3 opinions
- Sheldon v. SoperNew York Supreme Court · 1817
- Oakley v. HornNew York Supreme Court · 1839
- Shove v. RaynorNew York Supreme Court · 1846
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- Silva v. LopezHawaii Supreme Court · 1884
- Breese v. BangeNew York Court of Common Pleas · 1854
- Hackley v. DraperNew York Supreme Court · 1874
- Jones v. Portsmouth & Concord RailroadSupreme Court of New Hampshire · 1856
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