Radde v. Whitney — 4 E.D. Smith 378

Majority

p. 378

William Radde v. David W. Whitney.

Headnote

A mere levy upon property sufficient to satisfy an execution, will not amount to satisfaction, although the sheriff remains in possession for a day and a half, and only abandons the levy upon the plaintiff refusing to indemnify him.

Actiob against a surety upon a covenant to pay rent. Defence, satisfaction by a levy under an execution against the principal.

L. Seymour Ashley, for the plaintiff. ■

Alexander Spaulding, for the defendant.

By the Court.

This judgment in favor of the defendant must be reversed. Though a levy was made by the sheriff upon property sufficient to satisfy the execution, and he was in possession for a day and a half, he afterwards abandoned the levy, because the plaintiff would not indemnify him, leaving the property in the owner’s possession. This was no satisfaction of the debt, and the surety was. consequently, not discharged. (Peck v. Tiffany, 2 Comst. 456; Waddel v. Elmendorf, 5 Denio, 447 ; People v. Hopson, 1 Denio, 574 .)

Judgment reversed.