Majority
p. 559Van Winkle vs. Udall.
Headnote
A sheriff, having levied on the personal property of H., in virtue of a fi. fa. in favor of B., received another against H., in favor of V. Afterward, by an arrangement between B. and H., the first fi. fa. was withdrawn, and H. sold the property, applying the proceeds on B.’s judgment. The sheriff having neglected to proceed against the property under the second fi.fa.; held, that he was liable to V. for its value.Where a sheriff has seized property under a fi. fa., and then another fi.fa. against the same defendant comes to his -hands, the bare receiving of the latter operates as a constructive levy under it on the property seized upon the first.
Case against the sheriff of Kings, for official negligence, tried before Edwards, C. Judge, at the Kings circuit October 2d, 1839.
The proof at the trial showed the following, among other facts: Mr. Bosworth had an execution in the defendant’s hands against one Hendrickson, in virtue of which a levy had been made on all Hendrickson’s personal property not claimed by others. While the property was held under that levy, the plaintiff caused an execution to be issued on a judgment in his favor' against Hendrickson, which execution Mr. Bosworth put into the defendant’s hands. The defendant received the latter March 9th, 1838. On or about the 0th of May following, Hendrickson, with Mr. Bosworth’s consent, sold the property seized under his ex
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ecution to one Pine; Pine purchasing with knowledge that there was an execution against it. The entire proceeds of this sale were received by Mr. Bosworth, and applied on his execution, and Hendrickson made him some other payments about the same time; whereupon Bosworth, on or about the 18th of May, 1838, withdrew his execution, telling the sheriff, however, that the plaintiff would expect him to go on with the execution in question. The latter was returnable on the first Monday of May, 1838. The sheriff never did any thing under it, and had suffered Pine to take and appropriate the property.
The judge charged the jury that, inasmuch as Mr. Bosworth, whose execution was levied first, consented that Hendrickson should sell the property, and apply the proceeds on his execution, the plaintiff could not recover, as he had not been damnified. He also refused to charge, that the sale of the property to Pine was subject to the plaintiff’s execution. Exceptions were taken to the charge, as well as to the refusal; and a verdict having passed for the defendant, the plaintiff now moved for a new trial on a bill of exceptions.
J. S. Bosworth, for plaintiff.
J. A. Lott, for defendant.
The sheriff had levied on all the property in question, under the fi. fa. in favor of Bosworth. Then came the plaintiff’s fi. fa., the mere receipt of which by the sheriff operated as a constructive levy.[1] Bosworth’s fi. fa. being subsequently withdrawn, that of the plaintiff took complete effect, the levy under it becoming absolute. Clearly, the sale to Pine was subject to the levy under the plaintiff’s execution; first, the qualified levy, and secondly, the absolute one, when Bosworth’s fi. fa.
(a) (a) Cresson v. Stout, (17 John. R. 116.) And see Collins v. Yewens, (10 Adol. & Ellis, 570.
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was withdrawn. Either was sufficient to hold the goods as against Hendrickson, or Pine who claimed under him.[2] The sheriff should, therefore, have kept the goods and sold them under the plaintiff’s jfi fa, Not having done so, he is liable for their value. The learned judge erred in omitting so to charge; and there must be a new trial.
New trial granted.
(b) (b) .) See Butler v. Maynard, (11 Wendell, 548.) 2 R. S. 289, 290, § 17, 2d ed.