Appellants' points.

a judgment for its return (Comstock v. Stowell, 2 How. 53). Mr. Justice BRONSON said, in a case where the execution was returned nulla bona, "The sheriff no longer has any right to a return of the property, and consequently he has no right to a judgment for its value." The return of nulla bona is conclusive on the sheriff (Sheldon v. Payne, 3 Seld. 457; Townsend v. Olin, 5 Wend. 207; Pennington v. Loring, 8 Johns. 20; Slergerland v. Swart, 13 Id. 255; Vail v. Lewis, 4 Id. 449; Carpenter v. Stilwell, 1 Kernan, 61). Mr. Gwynne, in his work on sheriffs, says: "After the return of an execution to the clerk's office the writ is functus officio; the sheriff cannot re-take it or act under it" (page 424). He adds, that a return of no property cannot be impeached (see page 474, and authorities there cited). The return is conclusive on the sheriff (Gwynne on S. 473; Devoe v. Elliott, 2 Caines, 243; Vail v. Lewis, 4 Johns. 450; Phillips v. Dana, 3 Scan. 557). It may be said that the court had the power to allow the return to be amended; but clearly no amendment that was allowed without notice to the plaintiffs could affect their rights. On March 3, when the execution was returned nulla bona, the plaintiffs were entitled to judgment. How could that right be taken away by an ex parte order made long after the suit had been tried? The return cannot be amended, even by order of the court, so as to affect rights of persons not parties to the original suit which accrued before amendment (Emmerson v. Upon, 9 Pick. 167; Furnant v. Paul, 3 Greenl. 260; Putman v. Hall, 3 Pick. 445; Maur v. Osgood, 7 Greenl. 146).

VIII. The court also erred in charging the jury, that the destruction by Mr. Lord, the attorney of the plaintiffs, of the guaranty given by Douglas to Lane, to pay the notes of Albert S. Lane, and of the agree ment given by Burnham to pay the mortgage of Mr. Lane, was a fact "of great importance in the case,'

Appellants' points.

and that if the destruction of those papers had any relation to the matter of the transfer, it was a "very important" fact against the plaintiffs. (a.) The evidence clearly showed that the destruction of the papers was a thoughtless act, done in a moment, without reflecting that there was an action pending; done under Mr. Lane's declarations, that the notes and mortgage guaranteed had been paid by plaintiffs. If such was the case, then the fact was of no importance whatever. (b.) But even if the destruction was willful, and intentional, it was not an important fact against the plaintiffs, because it was done without the direction, assent or knowledge of the plaintiffs. A principal is never chargeable with the consequences of a willful act of an agent even within the scope of his authority; much less is he so chargeable for an act beyond the scope of his authority. (c.) The papers in question were not in the custody of Mr. Lord, as the agent or attorney of the plaintiffs. They were papers given to Mr. Lane, for his benefit, and were delivered by him to Mr. Lord, to be kept for him.

IX. The court also erred in charging the jury that if the circumstances attending the sale were such as would have led a man of ordinary prudence to make inquiry, and such inquiry would have shown a reasonable ground for believing that the sale was being made for the purpose of hindering, delaying, or defrauding creditors, "then the transaction was fraudulent in law." But the court went even further, in charging the proposition of defendant's counsel, that "to refrain from inquiry, when the circumstances are such as would put a man of ordinary prudence on inquiry, ‘is, in judgment of law, want of good faith.'" The omis

sion to make inquiry might be a circumstance to be taken into consideration by the jury; but to say that such omission made the sale fraudulent in law was going beyond all precedent or authority.

Respondent's points.

X. The court also erred in charging the jury as to the non-production of witnesses. It was an undisputed fact in the case, that Mr. Lane was sick, and unable to attend the trial; yet the court, at the request of the defendant's counsel, made use of language which was calculated to leave on the minds of the jury the impression that the failure of the plaintiff to produce Mr. Lane upon the stand was, under any circumstances, a fact against them from which they might infer fraud. But fraud must be proved; it cannot be inferred from facts which merely raise a suspicion (Jagger v. Kelley, 52 N. Y. 274; Dudley v. Danforth, 61 Id. 621).

XI. The plaintiffs had a right to leave the chattels in the restaurant for their own benefit, and to prevent the business from being broken up, without an actual or continued change of possession, provided the sale was in good faith and for a fair price, and yet the court refused so to charge (Bissell v. Hopkins, 3 Cow. 166; Clute v. Finch, 25 Barb. 428; Woodworth v. Wood, 21 Id. 343; Guffin v. Cramton, 10 Bosw.).

Vanderpoel, Green & Cuming, attorneys, and Robert S. Green, of counsel, for respondent, among other things, urged:-I. The rulings of the learned judge on the admission of evidence were correct. The evidence as to the declarations of William H. Lane was properly admitted, and the motion to strike out was properly refused. (a.) No ground of objection was stated (Fountain . Pettee, 38 N. Y. 184). (b.) There had been no change of possession and the declarations were admissible (Adams v. Davidson, 10 N. Y. 309; Newlin v. Lyon, 49 Id. 661; Willies v. Farley, 3 Car. & P. 395).

v.

II. There should not be a reversal in consequence of the sheriff's return to the execution. (a.) The question of the return of the execution was a matter between the plaintiff in execution and the sheriff. It in no way

Respondent's points.

affected the right of the plaintiffs. It had none of the elements of estoppel as regards them (Baker v. McDuffie, 23 Wend. 289). It could be no defense to the sheriff, in a suit by the plaintiff in execution. He might have been prosecuted for a false return, and a recovery had by showing that Lane had an interest in the very goods in question. (b.) The return was subsequent to the commencement of this suit. If the strict rule is applied to shut out subsequent proceedings, the same strictness limits the plaintiffs' recovery to the condition of things at the commencement of this suit.

III. There is no ground for reversal involved in the exceptions to the judge's refusal to charge the plaintiffs' requests, or to his modifications of such requests. 1. There was no error in the judge's refusal to charge the first request (Hartford v. Archer, 4 Hill, 291-297; Stout v. Rappelhagen, 51 Howard). A request to charge, to be available on an exception to a refusal to charge the same, must be presented with such precision that it is the duty of the court to charge the proposition, in the terms of the request, without qualification (Carpenter v. Stillwell, 11 N. Y. 61; Winchester v. Hicks, 18 Id. 558; Bagley v. Smith, 10 Id. 489). 2. There was no error in the judge's refusal to charge the plaintiffs' second request. The question of fact he properly left to the jury, involving as it did the disputed question of the validity of the transfer to Douglas, but instructed them as to the law upon the facts as they should find them (Vedder v. Fellows, 20 N. Y. 126). 3. The same is true with reference to the third request. 4. There was no error in the charge in respect to the fourth request. The statute, in the absence of an actual and open change of possession, required that the transfer should be shown to be a fair one. 5. There was no error in the charge that the jury must be satisfied that both transfers were good, or the

Respondent's points.

defendant was entitled to a verdict. If the judgment debtor, at the time of the levy, was the owner of an undivided part of the property, the same was subject to levy, and the sheriff was justified in taking the whole property, and could sell the interest of the debtor therein (Smith v. Orser, 42 N. Y. 132). The sheriff stood in the place of Lane, the judgment debtor, and no action of replevin could have been maintained against him by his co-owner (Kusarle v. Allen, 13 N. Y. 173; Foster v. Magie, 2 Lans. 183; St. John v. Standring, 2 Johns. 468; Farr v. Smith, 9 Wend. 338; Koningsberg v. Lauritz, 1 E. D. Smith, 215; Agel v. Bets, 2 Id. 188). 6. There was no error in the judge's refusal to charge that, if Burnham and Douglas, or either of them, employed Albert S. Lane to superintend the restaurant for them, the possession of Albert S. Lane was their possession. The judge's charge in this regard was correct. Albert S. Lane was the son and partner of William H. Lane, the judgment debtor, and vendor. He was the Co. of Lane & Co., spoken of in Burnham's bill of sale; he was engaged at the restaurant at the time of the alleged sale, and had been previously. He was the purchasing agent. The continuing of such a person in charge was not that change of possession which is required by the statute (Stout v. Rappelyea, 51 How.; Hollacher v. O'Brien, 5 Hun, 277; Jones v. O'Brien, 36 Super. Ct. Rep. 58).

IV. There was no error in the charge as made by the court upon the several requests submitted by the defendant. (a.) As to the second request: The charge was predicated on the fact that the evidence had not shown an actual and continued change of possession, which, under the statute, rendered the sale presumptively fraudulent, and threw on the plaintiff the burden of proof to show it was in good faith and without intent to defraud creditors. There was no such change of possession as the statute required (Randall v. Par