Lambert v. Paulding

Headnote

The goods of hound by' the ^'cv®(r/°f jjj® the execution, acquires a lien °f which he prived by the debtor; and'if foreSandactuti ^ Removed out óf thelbajf ¡°[othe other county, taken and soil cution subsl-though the it’ "e“f*a^uhcah‘ sale, acquires a Talk! title to the goods, yet the proceeds of such sale in the hands of the sheriff will be ordered to be paid to the plaintiff in the first execution, to the amount of his debt, leaving the residue, if any, for the plaintiff in the second execution.

CAINES, for the plaintiffs in the first cause, moved that the sheriff ofthe county of W estchester do pay to the plaintiffs in the first suit above mentioned, or to their attorney, out of the monies in his hands, arising from the sale of the sloop Euphemia, on the executions in the above causes, the A 1 amount of the execution in the first cause. From the affidavits which were read, it appeared, that on the 11 th of Au~ gust last, a judgment was entered up against the defendant, at the suit ofthe plaintiffs in the first cause, and on the 12th of August, a fieri facias was issued thereon, directed to the sheriff of the city and county of New-Yor/c, with directions to levy on the sloop Euphemia, belonging to the defendant, then lying in the city, but no actual levy was made. On Monday, the 14th of August, the defendant being told by his attorney that there would probably be a judgment entered up against him, at the suit of Lambert and others, on the 15th of August, confessed a judgment in favour of the plaintiff,

{W* P.) in the second cause, on ja bond <Iated the 1st of July.) conditioned for the payment of 7,370 dollars. The. judgment roll was filed in the clerk’s office, at 2 o’clock, P* M., and an execution issued thereon to the ,sheriff of New-York; but the plaintiff’s attorney then learning, for the first time, that a judgment had been actually entered up in the first cause, and an execution issued thereon to the sheriff of Mew- York, countermanded his execution, on the same day, and issued a test, ji, fa, to the sheriffof Westches-ter, which was delivered to his deputy, on the morning of the 15th of Avgust, It appeared that the defendant, on the morning of the 14th of August, removed the sloop from Méw-York to Tarry town, in the county of Westchester ; and the sheriff of that county there seized and sold the vessel, under the test.Ji. fa. so delivered to him in the second suit 5 butthe money arising from the sale, being 1,800 dollars, waá retained in his hands, by an order of the recorder of the city of Mew-York, until an application should be made to this Court. On the 19th of August, a test. fi. fa. in the first suih was delivered to the sheriff of Westchester.

Caines, in support of the motion, said, that he did not intend to deny the' common law right of a debtor, to prefer one creditor to another, nor that a judgment confessed for a honafde debt, in favour of one creditor, during the pendency of a suit by another, might gain a legal priority over the judgment subsequently-recovered, though confessed with a view to such priority ; but, he said, to warrant that priority, the' execution on the judgment confessed, must be delivered tp the sheriff before the execution sued out on Ihe judgment recovered. Such was the case of Holbird v. Anderson, (5 Term Rep. 235.) inaccurately stated by Mr. Tidd, in which the execution on the judgment confessed, was in the sheriff’s hands two hours before the execution on the judgment recovered. The reverse was the fact in the case now before the Court. The rule, therefore, qui prior in tempore, potior injure, would govern the rights of the plaintiffs in the respective suits»-

Paulding. By the statute (sess. 36. ch. 5. s. 6. 1 M. R. L. 501. 502.) no execution binds the goods of the defendant, until such execution is delivered to the sheriff, or other officer, to be executed. The provision of the statute prevents the debt- or from making any sale of the property; bqt if the goods remain in the possession of the debtor, without having been levied on by the sheriff on.the execution in his hands, they may be levied on and disposed of, by virtue of any other execution, for a bona fide debt, though subsequently issued ; and the purchaser under such subsequent execution, will hold the property. Under this statute, it has been held, “that neither before nor since the statute of frauds, is the property of the goods altered, but remains in the defendant until execution executed (2 Equ. Cas. Abr. 381. per Lord Hard-wicke. Hotchkiss v. M Vickar, per Spencer, J 12 Johns. Rep. 403 . 407.) and the meaning of the words, “ that the goods shall be bound from the delivery of the writ to the sheriff’’ is, that after the writ is so delivered, if the defendant makes any assignment of his goods, except in market overt, or by becoming a bankrupt, which is an assignment in law, the sheriff may take them in execution. If two writs of execution be delivered to the sheriff on different days, and the sheriff executes the last writ first, by making sale of the goods, the sale will stand good, and the plaintiff who delivered the execution first to the sheriff, may have his remedy against him. {Carthew, 420. Sanford v. Roosa, 12 Johns, Rep. 162 . 2 Salk. 320. 1 Term Rep. 729. 1 Lord Raym, 252. 2 Ventris, 216. 3 Lev. 69.191. Lord Raym. 724.) Though a fi.fa, binds the goods, as against the defendant, yet 'the property remains in him, until execution executed ; and, therefore, a sale under a subsequent execution vests a title in the purchaser; and the plaintiffin the first execution is left to his remedy against the sheriff, unless there has been some fault or laches on his part. (Payne v. Drew, 4 East, 523.) The cases referred to, show, that the property of a defendant is not so completely bound, by the delivery of an execution, to the sheriff, but that the former has some control over it, until execution executed, or until it is levied upon and sold under an execution subsequently issued, or is transferred by the operation of a

sheriff of Wesi~Chester, on the lest. fi. fa. of W. P. was subject to the lien of the execution of the Lamberts. By granting this motion, the property in the vessel acquired by the purchaser, under the sheriff’s sale, will remain undisturbed. The purchaser keeps what he has bought; but the proceeds in the hands of the sheriff are subject to the lien of the first execution of the Lamberts. W. P. in selling, acted for the Lamberts, to the amount of their prior lien, and for himself as to the residue. The property passed and continued in the vendee. From these facts, and the consequences to be deduced .from them, it is evident, that the granting of this motion will leave the principles of the cases cited untouched, and be perfectly consistent with them.