CHARLES E. SEXEY, Respondent, v. L. D. ADKISON, Appellant, 40 Cal. 408

Rhodes, C. J., delivered the opinion of the Court: After the return of this cause to the Court below, the jury again rendered a verdict for the defendant; and the Court, upon the plaintiff’s motion, granted a new trial.

It appears from the opinion, that the order for the new trial was granted mainly on the ground that the property attached by the defendant, was more than sufficient to satisfy the demand of Hutchings; that when enough is taken to satisfy that demand, the balance must be returned to the plaintiff— the vendee of the attachment debtor; that “ that balance can only be recovered in this action,” and that “if a general judgment in favor of the defendant is allowed to stand, the plaintiff can never get it ” — the balance.

The transfer of the property from Crane to the plaintiff, was made on the 14th day of April, 1866; it was seized by the defendant, as the Sheriff, on the 23d of the same month; and two days thereafter, this action was commenced. The complaint is in the usual form in actions for the recovery of the possession of personal property, or its value in case a delivery of the property cannot be had. The defendant justifies under the attachment in the case of Hutchings v. Crane.

There is no allegation in the complaint that the levy was excessive; and if the evidence showed • that such was the fact, we cannot see how the plaintiff could avail himself of that fact in this action. It was the duty of the defendant to seize sufficient property to .satisfy the amount specified in the writ — that is to say, property which would be sufficient, in his judgment, when sold at public auction.

The property, when attached, consisted, as did the property when sued for, of a quantity of drifted gold-bearing earth in a certain mining claim, a quantity of quicksilver, gold dust and gold amalgam in the flume leading from the mining claim, and the blocks and strips in the flume. From the situation of the property, there must have been great uncertainity as to its value; and because it turned out, when the flume was cleaned up, that the value of the property was nearly double the amount of Hutching’s demand, it does not follow that the levy was therefore excessive.

But conceding that the levy was excessive, and that the plaintiff could recover in this action the excess, which parcel of the property was the plaintiff entitled to recover at the commencement of the action ? what property did the defendant then wrongfully detain ? The jury were unable to make the designation, and determine that upon one part of the property the attachment did, and upon the residue it did not, constitute a valid lien.

We are of the opinion that the Court was also in error, as to the effect of the judgment for the defendant, upon the property which might remain after the satisfaction of Hutchings’ demand. The judgment determines that the lien of the attachment has priority over the title of the plaintiff, acquired by contract with Crane.

No one denies the validity of the plaintiff’s title as against Crane; and when the lien of the attachment is satisfied, the property not disposed of in satisfaction of the lien, as well as tbe surplus moneys that may remain after the Sheriff’s sale, and the satisfaction of Hutchings’ debt, remain subject to the contract between the plaintiff and Crane. There is a further answer to the grounds on which the new trial was granted.

The Court requested counsel to prepare for the jury blank forms of the verdict; and the plaintiff’s counsel prepared, and the defendant’s counsel assented to, two forms; one of which was: “We, the jury, find for the plaintiff, and that the value of the property was $ — ;” and the other: “We, the jury, find for the defendant.” And it was agreed in open Court that the verdict should be in accordance with one of those forms.

The stipulation, and the assent to those forms for the verdict, make it manifest, that the respective parties desired and expected a general verdict for the whole property in controversy; and negatives the idea that either party then claimed that his right to any parcel of the property was of a different character, or rested upon any different basis, from that asserted to all the property.

After an adverse verdict, rendered under those circumstances, it is too late for the plaintiff to insist on a verdict in another form, or to assert a right to a portion of the property, upon principles not applicable-alike to all the property. Many other grounds are taken in the motion for a new trial, but none of them requires any particular notice except that in relation to the assignment to Hutchings, of the indebtedness of H. C. Crane & Co. to McQueen.

It is insisted that McQueen, as he advised the transfer of the property by Crane to the plaintiff, is estopped to deny that the transfer was valid and sufficient under the statute of frauds; and that Hutchings is also estopped, because he took the assignment of the indebtedness, with notice that the property had been transferred to the plaintiff, by the advice of McQueen. There are no grounds for saying, that McQueen was estopped by means of the advice alone; but if estopped, it is because his advice was accepted and acted upon.

When he advised a transfer of the property to satisfy or secure tbe debt of tbe plaintiff, be meant a transfer that would be valid and effectual in law. Tbe vital point in tbe controversy, related to tbe validity of tbe transfer, under tbe fifteenth

section of tbe Statute of Frauds, and tbe jury found against tbe plaintiff. McQueen, therefore, was not estopped, even conceding that be would have been, bad bis advice been followed. Order granting a new trial reversed.