majority">By the Court, Welles, J.

The view I take of this case renders it unnecessary to consider any of the questions presented and discussed upon the argument, excepting the effect of the attachment issued against the property of Clinton Evans, in the action commenced by the defendants against Evans and Smith, and the seizure of the notes thereon. The attachment was issued on the 3d day of August, 1854, and, as appears by the sheriff’s return, the notes in question were levied upon by virtue of it the same day. The case does not show at what time the witness Converse demanded the notes of the defendants, whether before or after they were levied *530upon by the sheriff; nor is it very important, in this case, whether it was before or after, as it is not denied that at the time of the levy they were the property of Evans.

They were subject to be attached by his creditors, as his property, notwithstanding the demand had been previously made. Assuming that there had been a conversion of the notes by the defendants, so as to render them prima facie liable to Evans, it did not transfer the title to them from Evans to the defendants. They still belonged to Evans, and could have been replevied by him from a person who had unlawfully taken or detained them. If the defendants had returned the notes to Evans or his assignees, or offered to return them to the person or persons entitled to them, no action could be sustained which .should have been afterwards commenced, for a previous refusal to deliver them. In such action the plaintiff would not be entitled to recover even nominal damages, for the reason that the notes were not due, and consequently no legal damages would have been sustained.

The levy by the sheriff, by virtue of the attachment, was, in my opinion, equivalent, so far as the liability of the defendants in this action is concerned, to a return of the notes to. Evans. Such would clearly be the effect, if the attaching creditors had not been these defendants, and they had not been guilty of fraudulently acquiring the possession of the notes, so as to enable the sheriff to take them by virtue of the attachment.

The question then is, are the defendants estopped from setting up the attachment and levy as a defense, by the deception practiced by them upon Converse, the agent of Evans, by which Converse was induced to deliver the notes to Wright, the clerk and agent of the defendants. There is nothing in the case impairing the legal validity of the attachment. If the notes had remained in the hands of Converse, they would have been liable to be taken by virtue of the attachment, and so, if they had been returned to Evans. It was the duty of the sheriff to take them, in whose hands soever he could find them, *531Unless, therefore, the attachment can he in some way effectually assailed, I am unable to perceive why it was not a full and complete defense to this action. Can it, in truth, be alleged that after the defendants had undertaken to negotiate the compromise with the creditors of Evans, they were not at liberty to commence their action, and obtain the attachment against his property, and that the proceedings were, in consequence of the bad faith of the defendants, utterly null and void ? The question must either be answered in the affirmative, or the attachment and levy constitute a perfect defense. If the attachment was void, on account of the bad faith of the defendants, the commencement of the action in which it was issued, and the judgment rendered therein, were also void, for, the same reason. The one was as really a breach of faith as the other. But no one will claim, I apprehend, that the judgment was void. We are not considering whether the court, on application by Evans, would have set aside the attachment. The question is, whether it can be attacked in this collateral way, and whether the court should now regard it as a nullity. In my opinion, we are not at liberty so to regard it; but, on the contrary, we are bound to treat it as a legal and valid proceeding, until set aside on a direct application for that purpose.

We have not been referred to any adjudged case, holding that a legal proceeding, regular on its face, instituted by a party against another, in violation of good faith, or contrary to his express agreement, and with a fraudulent intent, can be treated as a nullity, where the question arises collaterally, as in the present case. But there are cases strongly tending to uphold the contrary view, and to show that the remedy of the party aggrieved, if he have any, is by an action for the wrong complained of. Putnam v. Man, (3 Wend. 202,) was an action of trespass and false imprisonment, in arresting the plaintiff on an execution issued by a justice of the peace, in a suit in favor of the defendant against the plaintiff. In that case, Mann, the plaintiff before the justice, was a constable, *532and procured the summons against Putnam, and falsely and fraudulently returned it to the justice, as having been personally served on Putnam, when, in fact, it had not been served on him in any manner, and Putnam had no knowledge of its existence. On the return of the summons, judgment was rendered by the justice in favor of Mann against Putnam, and in the absence of the latter. Mann afterwards procured an execution on the judgment thus obtained, upon which Putnam was arrested, and detained in custody; which was the imprisonment complained of. The plaintiff Putnam obtained a verdict at the circuit, subject to the opinion of the supreme court. The court, upon a case showing the above facts, gave judgment for the defendant; holding that the judgment before the justice protected as well the party as the justice, and the officer who was instrumental in enforcing it. That the plaintiff Putnam could not traverse the truth of the return to the summons by plea in abatement or otherwise; but that, if it was false, his remedy was by an action against the constable for a false return. That, as the justice had jurisdiction, and the proceedings were regular on their face, trespass would not lie.

The cases of Allen v. Martin, (10 Wend. 300,) and Beaty v. Perkins, (6 id. 382,) are to the same effect.

There should be a new trial for the error of the judge in directing a verdict for the plaintiff, with costs to abide the event.

The verdict, I am aware, was directed to be subject to the opinion of the court. But that could not be done in such a case as this. The only authority for ordering a verdict, subject to the opinion of the court, is section 265 of the code. By that section, where the trial presents only questions of law, the judge may direct a verdict, subject to the opinion of the court. This case is not one of that description.

In order to justify such a disposition of the case at the circuit, the facts should all be agreed upon, or found by the jury, or established by conclusive evidence. If there is no, *533question of fact in the case, such a verdict may be ordered; but if there be one, however strong the evidence may be upon it, provided, from the nature of the case, evidence would be admissable to rebut or overcome it, the question should be submitted to the jury to pass upon, with proper instructions from the court. All we can do, therefore, in the present case, is to order a new trial.

[Monroe General Term,September 6, 1858.

Welles, Smith and Johnson, Justices.]

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