Devoe v. Elliot — 2 Cai. 243

Majority

p. 243

Devoe against Elliot.

Headnote

A. sheriff cannot levy .on goods by virtue pf a fi. fa-, after the return day is past.

This was an action against the defendant to recover the ' value of a mare, sold by him to the plaintiff.

The facts were, that on the 17th of June, 1800, a wri$ of fieri facias was delivered to the sheriff of Montgomery, against the goods, &c. of Avery Herrick, returnable on thg third Tuesday, in July then next. On the tenth of November ^following, Herrick bought the mare in question, and sold her to the defendant, of whom she was purchased by the plaintiff. A few days after this, the sheriff levied on the mare in the plaintiff hands, and sold her by virtue of the writ, then remaining unsatisfied.

The only question for the court was, whether a sheriff by virtue of & fieri facias, put into his hands before the fe-turn day, can legally sell goods which the part}*-, agaiqSt whose property the writ issues, may acquire, subsequent to the return ?

OacLy, for the plaintiff.

There is no cas'e exactly in point; we contend, however, that till the debt is satisfied the writ will affect property coming to the hands of the person against whom sued out; otherwise the officer who begins an execution will not always be enabled to finish it. Yet this is what he is directed to do. 2 Bac. Abr. tit. Execu. 366. In the case of a levari facias,- against the kmiis of ecclesiastics, we find the writ is operative after the

p. 244

return. 2 H. Black. 582.^[1] In principle there is no difference between the two executions b j fieri facias, and that by a levari Was it otherwise than as we insist, a subsequent execution might be satisfied, while the first lay in the sheriff’s hands totally unproductive.

Hildreth, contra.

After the return day, the writ is dead in law. Its legal force is totally exhausted, and it warrants no kind of proceeding. 1 Salk. 321. 1 Vent. 30. Yelv. 157. Hob. 72. Tidd’s Practice, 385, tit. Execution.

The only question arising in this case is, whether a sheriff' can, by virtue of a fieri facias, duly delivered to him before the return day, legally levy on, and sell, goods and chattels acquired by the defendant after the return day in the execution? We think he cannot.^[1] We take it to be a general principle that all process must be served before the return day. The utmost length the law allows for executing a writ is the day whereon it is returnable. When a sheriff has levied an execution in due time, he may complete the same by sale after the return day, but should he omit levying until that day was passed, the execution is dead. If these positions be correct, we cannot see how goods purchased by a defendant, after the return day in an execution is passed, can be taken and sold under such process. The only mode, we conceive, of getting at such property is, by procuring a return of tbe execution and issuing an alias. A contrary practice would be mis* ehievous and a fraud upon other creditors.

*The opinion of the court, therefore, is, that judgment of nonsuit be entered pursuant to the stipulation in the case.

Judgment of nonsuit

(b) (b) His authority expires with the writ. If he levy after the return day by order of the plaintiff, they are both trespassers. Vail v. Lewis & Livingston, 4 Johns. Rep. 450 .