Candee a. Gundelsheimer.

of such judgment." Section 129 then makes it the duty of the clerk of the county to file such transcript, and enter and docket a judgment thereon, which shall be a lien on the real estate of the defendant in the county, and makes the judgment so docketed of the same force and effect as a judgment in the Court of Common Pleas. Here is the solution of the error. Up to this period in the legislative history of this subject, the judgment must have been for more than twenty-five dollars, unless rendered in a court of record, for upon no other judgment could an execution issue to the sheriff, and consequently could not have been brought within the section of the Code of 1848, above referred to.

Then comes the Code of 1849, section 292, which is the same almost literally, as the section above quoted, contained in the Code of 1848, down to the words, " Or if he do not reside in this State, to the sheriff of the county where the judgment-roll, or a transcript of a justice's judgment is filed;" the only difference being the addition of the last clause, " or a transcript of a justice's judgment is filed."

The only alteration, thus far, seems to be the enactment relating to a transcript of a justice's judgment, being express, whereas, before, it rested in implication.

But we are now met with further and more extensive legislation on this subject. The Legislature, at its session in 1849 (Session Laws, ch. 438; 3 Rev. Stats., 496, § 63, 5th ed.), amended the Revised Statutes, and enacted the following section in lieu of section 128 of the old statute above cited. "A justice of the peace, on the demand of any party in whose favor he may have rendered a judgment, shall give a transcript thereof, which may be filed and docketed in the office of the clerk of the county where the judgment was rendered; the time of the receipt of the transcript by the clerk shall be noted thereon, and entered in the docket, and from that time the judgment shall be a judgment of the county court." Then, after stating that a transcript of that judgment may be filed in any other county, &c., the section concludes thus: "But no such judgment for a less sum than twenty-five dollars shall be a lien upon or enforced against real estate."

Now, it will be observed that this, by the present statute, a transcript of a justice's judgment, for any amount, however small,

Candee a. Gundelsheimer.

may be filed in the county clerk's office, and that immediately upon such filing it becomes, not merely of the same effect and force, as a judgment of the county court, but actually a judg ment of the county court. It will not be denied for a moment that a judgment in a county court, rendered in an action originally commenced in that court, irrespective of amount, could be made the basis of these proceedings, and the statute makes the judgment in this case positively a judgment of this court from the time of filing the transcript.

The only remaining provision which it will be necessary to examine in connection with the above, is section 292 of the present Code, which must be read in connection with section 63 of the statutes, just above cited, and is as follows: "When an execution against property of the judgment debtor, or of any one of the several debtors in the same judgment issued to the sheriff of the county where he reside, or if he do not reside in the State, to the sheriff of the county where a judgment-roll, or a transcript of a justice's judgment for twenty-five dollars or upwards is filed, is returned unsatisfied in whole or in part, the judgment creditor is entitled to an order," &c.

Now the plaintiff obtains his judgment in the justice's court, and files his transcript; it immediately becomes a judginent of the county court; he issues his execution to the sheriff of the county where the defendant resides, has it returned unsatisfied, and applies for the order granted by section 292 of the Code,. the amount of the judgment being material only in cases of non-residents in whose favor the Legislature seem to have made an exception.

The conclusion to be derived from these different sections is inevitable.

It was urged upon the argument, that the effect of this decis ion would be to repeal that portion of the statute relating to the lien of real estate. This is not necessarily so; for these supplementary proceedings are not instituted until the affidavit is produced that the sheriff has returned the execution unsatisfied, which he could not do had the defendant any real estate in the county upon which this lien could be enforced.

I am not sorry that the law bears this construction. A large majority of those debts which the courts and the law seem powerless to enforce are less in amount than twenty-five dollars,

Candee a. Gundelsheimer.

and these, too, chiefly owing to operatives, servants, laborers, and persons of limited means, who are oftentimes illy able to bear the loss, and depend upon the scanty pittance they earn from day to day for the support of their families and themselves. It is argued that it is beneath the dignity of the courts to set all +his cumbrous machinery in motion for so small and trivial an nount. I answer, it is never beneath the dignity of the courts or the law to protect the rights and secure the privileges of the poorer classes-to ferret out dishonesty and punish fraud. Costs in these cases are in the discretion of the court: if the debtor is poor and honest, and cannot pay, he would never be charged with costs; if, on the contrary, he has property concealed which the law cannot reach without this searching process, is dishonest and will not pay, he will be entitled to but little sympathy. If condemned by the law, he is compelled to pay the full expenses of his trial and conviction, however small the judgment he may seek to evade.

I am, therefore, of opinion, that these proceedings are properly instituted, and that the defendant must submit himself to examination; but inasmuch as this question has been in doubt, and the defendants may have been honestly misled by a prevailing public error, I now make the following order: that the defendant again appear before the referee named in the original order, on two days' notice of the time and place, from the plaintiff's attorney; or that, in default thereof, an attachment issue against him for contempt.

DIGEST

OF

ALL POINTS OF PRACTICE

EMBRACED IN

THE STANDARD NEW-YORK REPORTS,

Issued during the period covered by this Volume:

Viz-18 NEW-YORK R. (4 E. P.Smith's R.); 27 BARBOur; 1 Bosworth; 4 E. D. SMITH'S C. P. R.; 8 ABBOTTS' PR. R.; 16 HOWARD'S PR. R.; and in the Laws of 1859.

ACTION FOR CHATTELS.

1. It seems, that an action for recovery of specific personal property will lie, although the defendant before suit has wrongfully parted with the possession. [Brockway a. Barnap, 16 Barb., 309; Drake a. Wakefield, 77 How. Pr. R., 106; and disapproving, Roberts a. Randall, 3 Sandf., 707.] Supreme Ct., Gen. T., 1858, Ward a. Woodburn, 27 Barb., 346.

2. In an action for chattels, the plaintiff obtained possession by proceedings of claim and delivery, and the defendant in his answer demanded judgment awarding possession to him, and damages for the detention by the plaintiff. The court, on the trial, held that the defendant having prevailed, was entitled to elect between a return of the property and a judgment for the value, and the defendant electing the latter, the court directed a verdict for the value of the property to be assessed by the jury.

Held, 1. That it was error. The defendant had no right of election. The jury should have been instructed to find for the defendant generally, and to assess the value of the property, together with the damages for the taking and withholding thereof. It was the right of the plaintiff to return the property instead of paying the value of it, which could only be required of him in case a return could not be had.