Ledyard v. Buckle, M'Whorter & Beekman — 5 Hill & Den. 571

Majority

p. 571

Ledyard vs. Buckle, M’Whorter and Beekman.

Headnote

In general, a-second fi.fa. cannot issue to the same county with the first, until the first be returned. Per Cowen, J.

This rule admits of no qualification except on the ground of necessity. Per Cowen, J.

Afi. fa. was issued to the county of O. against A., B. and C., under which the sheriff seized household furniture belonging to A. and certain property in the possession of B., but not enough to satisfy the fi. fa. The title to the last mentioned property being disputed by a third person, he replevied it; and, after the return day of the fi.fa., the replevin being still pending, other property belonging to C. was discovered, whereupon a second fi. fa. was issued to the same county, and C.’s property seized under it, the first fi. fa. not having been returned. Held, that the second fi. fa. was irregularly issued.

The officer may, in such case, return the seizure under the first fi. fa., together with the fact of replevin, and if the goods be afterwards restored, they may be disposed of in virtue of a venditioni exponas. Per Cowen, J.

Motion to set aside an execution. A fi. fa. in favor of the plaintiff was delivered to a deputy-sheriff of Oswego county on the 19th of June, 1840, endorsed with directions to levy and collect of the defendants the sum of $1146,68. ■ The deputy seized the household furniture of the defendant Beekman, together with some books, and the personal property of the defendant M’Whorter. The title to the property last mentioned being disputed, and claimed by a third person, it was replevied at his suit. While the replevin was pending, and after the return day of the fi.fa., the plaintiff discovered other property belonging to the defendant Buckle; whereupon a second fi. fa. was issued and the property of Buckle seized under it, the first fi.fa. being not yet returned but kept running in order to its final execution should the suit in replevin fail. The second fi. fa. was endorsed the same as the first in respect to the amount directed to be levied and collected. There had been no sale under the first, fi.fa., nor was the property seized under it of sufficient value to satisfy it, but fell much short. Buckle was the principal debtor in the judgment, the other defendants being sureties; and the delay to sell the books and furniture of Beek

p. 572

man was .at his instance. Both writs were directed to the sheriff of Oswego. ,

W. F. Allen, for the defendants,

insisted that the issuing of the second fi. fa. to the same county with the first, the latter n,ot having been returned, was irregular. . He cited and commented on 2 R. S. 364, § 6; 3 R. S. 726; Tidd’s Pr. 912, 2d Am. ed.; Cairns v. Smith, ( 8 John. Rep. 337 ;) Dorland v. Dorland, (5 Cowen, 417.)

E. C. Litchfield, contra.

The general rule is, that a second fi.fa. cannot issue to the sanie county with, the first, until this be returned. The rule is very strongly expressed in several cases cited on the argument. No qualification has been allowed, and none should be except in a case of necessity. I do not see any necessity in the present case. • The plaintiff delayed a sale as to one defendant, at his request and for his accommodation. ' He might have sold the goods and returned the execution with ordinary diligence in time to issue the second one. That can scarcely be called a necessity which he has himself voluntarily created. Then as to the necessity of retaining the execution as a justification against the replevin; its return-would have detracted nothing from its force as a justification, n.or would it have taken from the sheriff, the power to sell on the goods being returned. He might have returned the seizure and replevin,, which would have shown a part execution; and the goods might have, been afterwards disposed of in virtue of a venditioni expon.as, as in the ordinary case of a return that fio purchasers can be obtained. (Tidd, 1020, Am. ed. of 1840 ; Bing. On Judgm. &c. 262, 3.) The rule laid down in Clerk v. Withers, (1 Salk. 323, 2 Ld. R. 1074, S. C.,) is, that where tire sheriff returns not sold for want of buyers, a venditioni goes if he be still in office ; if he be out, he is still bound to sell the goods; and may be distrained and compelled' to do so by distringas to the newsheriff This shows that no power is taken

p. 573

away from the sheriff by his return of a case which precludes an immediate sale. It may be more convenient to the plaintiff if we allow the sheriff to retain the first j/t. fa. while the plaintiff proceeds to another; but this does not form a ground of exception. The motion must be granted with costs.

Ordered accordingly.