Herkimer County Bank v. Brown — 6 Hill & Den. 232

Majority

p. 232

The Herkimer County Bank vs. Brown. Rathbone vs. Brown.

Headnote

Though a sheriff after levying upon goods in virtue of suffer them to remain for a year without selling, yet if the plaintiff be chargeable with nothing beyond mere acquiescence in the delay, and has neither said nor done any thing to sanction or encourage it, the court will not declare the./t. fa. dormant in respect to subsequent executions.

On the 7th of May, 1842, an execution against Brown, in favor of the Herkimer County Bank, for $1026,22, was issued out of this court, and delivered to the sheriff of Albany comity, and a levy was soon after made upon Brown’s personal property. He was then in business as a hardware merchant in the city of Albany, and continued so in business, buying and selling, up to the 20th of July, 1843. In November, 1842, some payments having been previously made on the execution, the bank assigned the judgment to Eras tus Corning & Co., for $800, the balance then remaining unpaid; and the attorney for the bank told the deputy who held the execution that Corning & Co. had the control of the judgment for the balance due, and that he must call on them for instructions. On the 20th of July, 1843, Brown assigned all his personal property to one Gilbert C. Davidson, who immediately took possession. On the 27th day of the same month, an execution out of chancery, against Brown, in favor of Joel Bathbone, for $2550,56, was delivered to the under-sheriff. As against Davidson, the sheriff claimed to hold the goods by virtue of the bank judgment. He also claimed to hold the goods against Davidson under the Bathbone execution, but on smnmoning a jury they found in favor of Davidson, so far as this execution was concerned. About the period of the assignment to Davidson, the deputy who had the bank execution called on Corning <fc Co. for the first time, and was directed to proceed and collect the money. The sheriff sold the goods and obtained the money, but not enough to pay both executions. Several small executions against Brown

p. 233

were delivered to the sheriff while he held the bank execution, which were paid by Brown. The deputy who held the bank execution swore that he was directed by the plaintiff's attorney to proceed no further until he had instructions from Corning & Co.; but this was fully denied, and Corning & Co. denied having given any instructions for delay.

I. Harris

moved that the money in the sheriff’s hands be applied 'on .the execution in favor of Rathbone, on the ground that the bank execution had become dormant. He cited 5 Cowen, 395 ; 4 Wend. 334 ; 2 Hill, 364 .

D. Burwell, contra.

The answering affidavits have brought this case within a narrow compass. As the proof stands, we cannot say that the attorney, or the assignees of the bank judgment, have ever given any instructions for delay, or that they have in any way interfered with the command of the writ to levy and collect the money; unless we infer instructions, against the positive denial of the parties, from the delay which actually took place. To declare the bank execution dormant under such circumstances would be going further than the cases have yet gone, and we think the motion ought not to be granted. In all the cases where the first execution has lost its preference, something was said by the plaintiff or his attorney at the time the execution was issued, or at some subsequent period, from which the sheriff could reasonably infer that he was authorized to give indulgence, instead of complying strictly with the command of the writ. But here no such thing appears. There is nothing but the naked fact that the assignees of the judgment did not rule the sheriff to proceed, or take any other measures to hasten his movements. That only warrants the inference that the assignees acquiesced in the course pursued by the sheriff. But mere acquiescence, without doing or saying any thing to encourage or sanction the delay, we think

p. 234

is not enough to render the execution dormant,^[1] In this view of the case it is unnecessary to consider whether the chancery execution was not cut off by the previous assignment by Brown to Davidson.

If the goods which the sheriff sold are not the same which had been levied on before the return day of the bank execution, then of course the sheriff will not pay the money to the owners of that execution. Mr. Rathbone does not need our aid in that matter. We make no order about the application of the money; but leave the sheriff to do his duty.

Motion denied.

(a) (a) See Knower v. Barnard and others, ( 5 Hill, 377 ;) Kimball v. Munger, ( 2 Hill, 364 ;) Grab. Pr. 382 to 384, 2nd ed.