Dorland v. Dorland — 5 Cow. 417

Majority

p. 417

Dorland against Dorland and Willets.

Headnote

A second^. fa. cannot issue, until the first, (if levied,) he returned, unless it be to a county other than that to which the first issued.

The judgment being for the plaintiff, on confession upon bond and warrant of attorney, he issued a fi. fa. to the sheriff of Onondaga, returnable in February term last; which was levied on certain property of Willets. After the return day, but before the return of this fi. fa. the plaintiff discovered other property of Willets, not levied upon. Whereupon the plaintiff obtained a stipulation from Borland, one of the defendants, that a second fi. fa. might issue to the sheriff of the same county, and that he would not move to set it aside. He then issued a second fi. fa. to the same sheriff, and caused it to be levied on Willets’ property so found; which

J. A. Dunlap now moved to set aside as irregular.

W. Crafts, contra, cited 14 John. 330 ; 2 Cowen, 495.

The second execution was irregular. The farthest we have gone, before the first execution returned, is, to allow another in a county different from the one to which the first issued. The consent of Borland cannot affect the rights of Willets. The second fi. fa. and all subsequent proceedings upon it, must be set aside with costs, on the defendant, Willets, stipulating to bring no action for the levy under it.

Rule accordingly.