Hyperlawhypertext legal database Paton v. Westervelt 9 N.Y. Super. Ct. 362

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Paton v. Westervelt

9 N.Y. Super. Ct. 362 2 Duer 362 Court N.Y. Super. Ct. Decision date 1850-11-19 English

Delivered by *379 By the Court. Bosworth, J.

Contents

Majority

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Paton and others v. Westervelt.

Headnote

' The mere fact that a judgment confessed, is confessed to secure as well a debt owing to a creditor other than the plaintiff, as one owing the latter, does not render it fraudulent and void as against creditors.
A sheriff holding several executions against the same debtor, received at different times, cannot be required to treat those first received as dormant, merely because the plaintiffs therein gave to the sheriff a written consent that he might adjourn a sale under them, for forty-seven days after their return day, there being no agreement giving to the debtor a delay, or the use or benefit of the property in the meantime.
A plaintiff, in a junior execution, cannot sustain an action for falsely returning it, nulla bona, by merely proving that a judgment on which an older execution issued was confessed with intent to defraud creditors, that the sheriff was so notified, and was also notified that the proceeds of the property would he claimed on the junior execution.
The sheriff is not bound to try the question of fraud, nor to decide at his peril which of the two creditors should have the preference, so long as he acts indifferently between the parties, and does not lend himself to either. If a sheriff has notice of incontrovertible facts, which would render it fraudulent, he is bound to treat it as fraudulent.
The sheriff cannot defend an action for falsely returning nulla bona, by proof of a prior execution falsely returned, nulla bona. He can justify, under a prior execution, only by showing it executed, and the proceeds applied upon it, or by
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showing it unreturned, and the existing power as well as a subsisting duty to apply the proceeds upon it.
(Before Duer, Bosworth, and Emmet, J.J.)
October 25
November 19, 1850.
Upon this last ground a judgment dismissing plaintiff’s complaint reversed, and a new trial ordered; costs to abide event.
Appeal of plaintiffs from a judgment at special term dismissing the complaint. A bill of exceptions taken upon the trial was annexed to the record.
The action was against the defendant, as late sheriff of the city and county of New York, for making false returns to three several executions. The complaint charged, 1. That one Magher, deceased, in his lifetime, on the 18th of October, 1847, recovered a judgment against one Lovell Purdy in the Supreme Court, for §2000 debt, and $22.38 costs, upon which an execution in the usual form was duly signed and delivered to the defendant, who by an endorsement thereon was directed to levy the sum of $1031.96, besides interest and his fees. This judgment, the complaint subsequently alleged, had been assigned to the plaintiffs by the administrator of Magher. 2. That on the same 18th October, 1847, the plaintiffs had recovered a judgment against the same L. Purdy and John C. Holland for $671.29, damages and costs, upon which an execution was duly issued and delivered to the defendant, who was directed to levy $672.29, with interest and besides his fees. 3. That on the 11th December, 1847, the plaintiffs recovered another judgment against Purdy for $422.68, damages and costs, which sum the defendant by an endorsement upon an execution duly issued to him therein, was directed to levy with interest, besides his fees. The two last judgments were in this court. The execution on the first judgment (Magher’s) was issued on the 15th October, 1847; on the second, on the 18th Hovember; and on the third, on the 27th December, in the same year. The complaint further stated, that each of the executions was returnable 60 days after its delivery to the defendant, as sheriff, and that at the time of said delivery and during the whole time thereafter, until the return-day of each had expired, there were divers goods and chattels of Purdy within the defendant’s county, from which hé might and ought to have levied, the
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moneys he was directed to levy by the said executions, and of which he, as sheriff, had notice; that the defendant, regardless of his duty as sheriff, did not and would not collect and pay over to Magher and the plaintiffs respectively the sums of money directed to be levied in their respective executions, but that in the month of A.ugust, 1848, he falsely returned Magher’s execution and filed the same in the clerk’s office of the Supreme Court, with his return endorsed thereon, as follows: “Ho goods, chattels, or real estate, John J. Westervelt, Sheriff and that in the month of June, 1848, he falsely returned the other two executions and filed the same in the clerk’s office of this court, with his return endorsed on each of them, signed by him substantially as follows, “ Ho goods, chattels, or real estate.”
The complaint then charged, that before the 18th October, 1847, one Charles Yyse issued and delivered to the defendant, as sheriff, an execution against Purdy for about $1800, by virtue of which the defendant, as sheriff, levied upon goods and chattels belonging to and then in the possession of Purdy, of the value of upwards of $10,000; that on or about the 31st January, 1848, he sold a part of this property to the value of less than $2,325, and negligently suffered Purdy to keep the residue and convert the same to his own use; that from the proceeds of this sale the defendant had deducted not only his lawful percentage and fees but various additional charges which were wholly illegal, amounting to the sum of $439.76, which ought to have been added to the sum of $55.90, which the defendant, when he returned the execution of Yyse satisfied, admitted to be a balance in his hands.
The plaintiffs demanded judgment for $1,734, with interest and costs.
The answer denied that the defendant had made false returns on the executions mentioned in the complaint; or had been guilty of the neglect of duty therein charged; or had made or deducted any illegal charges; and stated that when the three executions mentioned in the complaint were delivered to him, he had then in his hands two other executions, one in favor of Yyse and one in favor of one Henry K. Toler, for $6000 debt, and $22.38. damages and costs, and that’by these two prior ex
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ecutions the whole of Purdy’s property was covered and exhausted.
The plaintiffs, in their reply, averred that Toler’s judgment and execution were fraudulent and void as against creditors, of which the defendant, as sheriff, had notice, and that after satisfying Vyse’s execution, the property left in the possession of Purdy was more than sufficient to satisfy Magher’s and the plaintiff’s execution.
The action was tried before Mr. Justice Paine and a jury, on the 24th March, 1851.
The following were the proceedings on the trial, as stated in the bill of exceptions:
The plaintiffs’ counsel produced and read in evidence the records of judgment of Toler, Magher and the plaintiffs, alleged in the pleadings.
The judgment of Toler was on bond and warrant of attorney, dated October 11, 1847, and the bond was conditioned, in the ordinary form of a money bond, to pay $3,000 on demand with interest.
He also produced and read the execution of Toler, a copy whereof is annexed to the answer returned nulla lona by defendant, and filed October 2,1848.
The said bond and warrant did not, either of them, express that any one but said Toler was interested therein.
The said counsel also proved and read in evidence the letters of administration and the assignment by Peter Magher, the administrator therein named, to the plaintiffs mentioned in the complaint.
He then called as a witness
Henry K. Toler, who testified that he was the person who recovered said $3,000 judgment.
Q.—What was the consideration of such judgment?
This question was objected to by the defendant’s counsel and overruled by the court, and the plaintiffs’ counsel duly excepted.
The said counsel then offered to show by said witness that said judgment was confessed with intent to hinder, delay and
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defraud the creditors of said Purdy, and that the same, and the execution thereon, were and are fraudulent and void against the plaintiffs.
Whereupon defendant’s counsel proposed to show that plaintiffs moved the Supreme Court, in Hay, 1848, to set aside Toler’s and Hagher’s executions as being fraudulent and void, and also that the moneys in the sheriff’s hands after satisfying Yyse’s execution, be applied to satisfy plaintiffs’ judgments, and that said motion was argued and denied.
The plaintiffs objected to such evidence being introduced, the court excluded it, and defendant’s counsel excepted.
The plaintiffs’ counsel then proposed to prove by the witness the matters stated in his above offer. The defendant’s counsel objected to this evidence that the plaintiffs cannot, in this action, inquire into the bona fides of a prior execution, and the court excluded the evidence, and the plaintiffs’ counsel excepted.
The court, on the offer of the plaintiffs’ counsel, allowed him to give evidence to show the true amount claimed by Mr. Toler, at the time his execution was issued, to be due under his judgment, with a view to show that more money might have been collected by the defendant under the executions in the pleadings mentioned than enough to pay such amount.
The defendant’s counsel then, on notice, produced the paper, of which the following is a copy, which he admitted to be genuine, and to have been served by Brady and Maurice, attorneys for Toler and for Olsen, on the defendant at the date thereof, to wit:
Supreme Court. Henry K. Toler v. Lovell Purdy.—Judgment docketed October 18,1847, for $6,000 debt and $22.38 damages and costs. Ido hereby certify that the j udgment in this cause includes the debt due by the above named defendant, Lovell Purdy, to Andrew J. Olsen, which amounted at the time said judgment was docketed to the sum of nine hundred and fifty-one dollars, and I do hereby stipulate that the sum so due the said Andrew J. Olsen, with the interest thereon, is payable and shall be paid out of the proceeds arising from the execution issued in this
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cause, and now in the sheriff’s hands, next after paying the law expenses on such judgment and execution, and my debt included, in said judgment (and which debt amounted to the sum of one thousand three hundred dollars at the time said judgment was docketed), and the interest accrued thereon, and in case the proceeds of such execution shall he insufficient to pay in full the amounts so due to me and the said Olsen, respectively, as aforesaid, he the said Olsen shall be entitled to receive, and shall receive the whole residue of such proceeds after payment of the law expenses aforesaid, and my demand for principal and interest in full.
Dated, New York, December 27th, 1847.
Henry E. Toler.
Witness—James Xamriee.
I assent to the within arrangement.
Andrew J. Olsen.
Witness—James Xaavriee.
In consideration of the within agreement and of the sum of one dollar, I do hereby agree to the within and all the stipulations therein contained.
Dated, New York, Dec. 27th, 1847.
L. Purdy.
Witness—John D. Bm-ohajrd.
The plaintiffs’ counsel under objection then read such paper in evidence.
The said witness then testified further, as follows, to the admissibility whereof defendant’s counsel objected, and the court reserved the point.
On October 18th, 1847, Purdy owed me $854.30 for goods sold and delivered, and that was all he owed me. No other paper than that above specified, was signed by me before that date. At the time Purdy confessed that judgment to me, the understanding between us was, that it was for myself and for others, and those others I cannot state that he named at that time. ..The first man I remember to have heard named as a
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party interested in the judgment after me, was Olsen. I had nothing to do with the naming of the creditors to be interested therein.
Q.—Did you feel yourself obligated to let in such men as he chose to name ?
A.—Of course if he named them they would be admitted.
Q.—What was done between you and Purdy, before this paper was signed, to deprive him of the right to name any other person than Olsen, to come in his place ?
A.—Nothing that I remember.
Being cross-examined, the defendant’s counsel produced an original sworn deposition of the witness relating to said judgment, and the consideration and particulars of the same, and the understanding between, him and Purdy, and read the following portions thereof to idle witness.
Q.—Was any one hut yourself and Mr. Purdy, and who present, when it was said that such judgment was to be for the benefit of any other creditor than yourself, and was any one knowing to such understanding at the time, and who ?
A.—It was in the presence of Mr. Magher, and Mr. Tread-well I think was there at the time.
Q.—Where, for the first time, did Mr. Purdy state to you the names and amounts of the several creditors whose debts were or are included in such judgment.
A.—To the best of my knowledge and belief, he spoke of Mr. Olsen as one he wanted to be included in the judgment after me, and I think that was before he confessed judgment to me, but he did not give me any other names at that time, but said he wanted to include others ; I did not ask him who they were.
The other names were given some time after; Mr. Olsen’s name was given to Mr. Maurice about three or four weeks before the bill in chancery was filed, and the list of the other names was given to me by Mr. Purdy a day or two after Mr. Olsen’s name was given to Hr. Maurice. Mr. Maurice is my solicitor in this case, and was Mr. Olsen’s attorney at that time.
The witness continued i:—It was also understood when the judgment was confessed that it should cover any future sales or
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advances I might make to Purdy, Purdy suggested to enter it up for more than was due to me with that view.
The direct examination was resumed. The witness conti» nued:—I think, but am not sure, that Magher and Treadwell were present when Purdy said it was for other creditors. I think both were present, After October 18th, and before No» vember 18th, 1847, I sold Purdy goods to the amount of $86,55, In November I loaned him in money $170, and the interest on the original account was $14.77, These amounts, with the $854,30, state all my interest in the judgment. No one was present at or knowing to the agreement concerning future sales or advances but myself and Purdy, It was not contemplated at that time, that any money was to be loaned. When I lent it he promised to repay it in a week, I do not recollect that anything was said at the time the judgment was confessed that it was to cover future advances in money, and at the time of the loan I do not think anything was said about its being covered by the judgment. There was no agreement that I should make future sales or advances. The items above stated are all the interest in the judgment I ever had.
The plaintiffs counsel then called as a witness, John J. V, Westervelt, the defendant, who testified that he had no know» ledge of any interference with the deputy in the answer named, or instructions given to him by Magher, or the plaintiffs, or either of their attorneys,
The plaintiffs then called as a witness, Lovell Pwrdy, who testified that he formerly carried on business at 483 Broadway, where the goods and chattels sold by the defendant as in the pleadings mentioned were situate, That such sale took place January 31,1848, That no person was ever left there before the sale by the deputy, to take charge of such goods and chat» tels, but the deputy was in the habit of visiting there every few days. It was a club house,
He further testified, that the defendant’s deputy left goods and chattels in his (witness’s) possession after such sale, that the same was on such premises before and at the time of such sale, and that there was no property removed by him, the witness,
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after such sale, which had not been there before such sale, and subject to the inspection of said deputy.
The witness further testified that, in April, 1848, he removed such property from such premises, and afterwards sold it.
He testified, on his cross-examination, concerning its value, and to the effect that a part of it was purchased by his brother, who paid $250 for it about a year before he started the club house, which was in the spring of 1847, and to the effect that his brother owned such part, and the residue belonged to himself, also concerning its being exempt from execution.
He also testified concerning* the manner in which the property so left in his possession was selected, and that he desired the deputy to leave the piano, which he refused to do.
The court here adjourned to March 25, on which day, at the opening of the court, the defendant’s counsel stated that the witness Toler desired to make an explanation.
The said witness, being interrogated by defendant’s counsel, stated as follows:
I gave Mr. Purdy credit for $135, bills receivable, which were not paid, and omitted to charge them back to him on my books.
Being cross-examined by plaintiffs’ counsel, he said: They were three notes of different persons, endorsed by Purdy. I cannot state whether they were protested. I think demand was made on the makers, but am not sure. Purdy had notice the next day. They had matured when the deposition was taken, which has been referred to by defendant’s counsel, 1 suppose.
The plaintiff’s counsel then called as a witness,
Edward E. Treadwell, who testified that he was the attorney who entered up the judgment of Toler and Magher, mentioned in the pleadings.
On objection to a question, the court required the plaintiffs’ counsel to state what he expected to prove by the witness.
He answered that he expected to show that Toler and Purdy
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came to Mm to enter up the judgment of Toler; that Purdydirected him on that occasion as to the amount in wMch it was to be entered, and that notMng was said or agreed on as to its being for any other than Toler’s debt.
Also, that, as the attorney of Magher, he notified the defendant, in writing, before the sheriff’s sale, that Magher claimed in opposition, and in preference to the claim of Toler.
The court rejected such proffered testimony, and the plaintiffs’ counsel duly excepted.
The court then ruled that the plaintiffs’ counsel could not go into evidence to reduce the amount of Toler’s claim under Ms judgment, unless' he first showed that he (Toler) informed the defendant of it, so as to preclude himself from maMng any claim.
The plaintiffs’ counsel duly excepted.
The witness continued: I never interfered with the deputy by giving him instructions or otherwise.
Being cross-examined, the defendant’s counsel produced the following paper which he said was delivered to the deputy sheriff at its date.
“ Supreme Court.—Charles Vyse v. Lovell Purdy.—We consent that the sale under the executions in this cause, and those we respectively hold, be adjourned 30 days without prejudice to any party.
“ New York, December 27th, 1847-.
“ Edward F. Treadwell, Att’y for Magher.
“ Edward F. Treadwell, Att’y for Henry K. Toler.
" Robert H. Shannon, Att’y for Mrs. Hays.
" Samuel G-. Raymond, Att’y for Pl’ff.”
The witness testified that the signature of his name to such paper was genuine ; that he thought he gave the same to the attorney of Vyse, and did not give it himself to the defendant or his deputy.
The plamtiffs’ counsel then called as witness,
Angelina Brown, who testified that she moved into the house, 483 Broadway, April 7,1848, and found Lovell Purdy
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there. He moved out two or three weeks after witness moved in. The house was a large double house, four stories high, besides the basement.
Q. What property was there in that house when you moved into the same, in the possession of To veil Purdy ?
The defendant’s counsel objected, unless plaintiffs show it was there at the time of the levy, or the sheriff had knowledge of it; and the court overruled this question, and the plaintiffs’ counsel objected.
The plaintiffs’ counsel then offered to show by the witness, that, on April 7, 1848, the said Purdy had goods and chattels in that house of the value of several thousand dollars, and that he thereupon removed the same.
The offer was overruled by the court, and the plaintiffs’ counsel duly excepted,
. The plaintiffs’ counsel then called as a witness,
John Fleming, who testified that he boarded with said Purdy at said house, before and up to the sheriff’s sale; that he remained there afterwards and boarded with Mrs, Brown, the last witness, until Purdy left; that before the sale the house was well furnished.
Q. Can you state the value of the goods and chattels belong» ing to said Purdy in that house, before and at the time of the sheriff’s sale, and if so, state?
The question, on objection by defendant’s counsel, was over» ruled by the court, and the plaintiffs’ counsel excepted.
The court here ruled that the plaintiffs could not recover, unless they showed more property than enough to provide for the debt of Toler, and the debt of Olsen, both as specified in said agreement of Dec. 27, 1847, and the plaintiffs’ counsel excepted.
The plaintiffs’ counsel here stated that he had further and other evidence to offer, but, under the ruling of the court upon the several points and questions raised, he should offer no more testimony.
Hie defendant’s counsel moved for a nonsuit.
Hie court granted the motion, and the plaintiffs’ counsel duly excepted
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A motion for a new trial upon the exceptions taken on the trial was subsequently made at a special term, and denied with costs.
C. H. Smith, for the plaintiffs,
now moved for a reversal of the judgment, and a new trial; and relied upon the following points and authorities.
I. In att action for the fhlse return of the fieri facias, where the sheriff retains the proceeds of the property sold for unfounded claims of his own (e. g. fees not warranted by law, or pretended disbursements never incurred, or where he omits to levy, or having levied negligently loses the property levied on), the plaintiff, in answer to a defence of a judgment and execution, prior to that of the plaintiff, which Would have com Burned the Whole avails, had the sheriff done his whole duty, and where he has returned such prior execution milla bona, may show such prior judgment, and, consequently, the execm tion to be fraudulent. (2 R. S. 3d ed., 197, § 1, 5; 2 Phillip’s Ev. 404, 405 ; 2 Greenleaf, § 585, 593 ; Warmoll v. Young, 5 Barn. & Cress. 660; Fairfield v. Baldwin, 12 Pick. 388 ; Harrod v. Benton, 8 Barn. & Cress. 219; Saunders v. Bridges, 3 B. & Ald. 95; Pierce v. Jackson, 6 Mass. 242 ; Clark v. Foxcraft, 6 Greenleaf, 296; 7 id. 348 ; Holbird v. Anderson, 5 T. R. 235; Townsend v. Kerns, 2 Watts, 180 ; Imray v. Magnay, 11 M. & W. 267; see Remmett v. Lawrence, 1 Eng. Law & Eq. Rep. 260; Adams v. Balch, 5 Greenleaf, 188; Com. Bank v. Wilkins, 9 id. 28; Rogers v. Sumner, 16 Pick. 387 .) 1. The court below rejected tiffs proposition by an erroneous application of the principle, that an officer is protected by his process for all acts done under and in obedience to it. That, as a general principle, is fully conceded, but it does not conflict with the above position : on the contrary, it is here sought to be Used as a protection for acts done in violation of the process, and instead of being solely available to protect the innocent and faithful officer, if the ruling below is correct, it is equally efficacious to shield and facilitate the too common practices, an aggravated instance of which is not only admitted by the answer, but fully proved in the evidence, where the sheriff
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admits by bis oath the charge of having deducted out of a collection of $2,800, the sum of §439,76 for services, not only imaginary in fact, but which it is illegal as well as criminal to charge for, if in fact rendered, and which enormities have been thus far triumphantly and profitably sustained, (Warmoll v. Young, supra; Fairfield v. Baldwin; Camp v. Chamberlain, 5 Denio, 198 .) 2. The evidence is admissible, without affirming that it is so in all cases where the sheriff is not chargeable with malfeasance, because it shows that if the sheriff had done his duty and had, as he ought to have had, a fund ready to be paid over to whoever was entitled to it, the plaintiff would have had the right by proceeding to have the fraudulent judgment vacated, to be paid first out of the proceeds, and because it shows the sheriff has deprived the plaintiff of an opportunity to collect his debt in that way, (Cow, notes to Phil. Ev. n, 741, p. 1090, &c.) 3. Having returned the Toler execution nulla bona, he is estopped to say that it was at any time a valid lien upon the property; in other words, he cannot say that it is a false return. 4. The plaintiff was not bound to proceed by motion or suit, to set aside the Toler judgment before bringing suit against the sheriff, As this case stood at the trial that execution had been got out of the way by the sheriff’s return of milla bona ; but if it had remained in his hands unreturned, it would have made no difference, (a.) His cause of action accrued, if at all, upon the return of his execution nulla bona. The statute of limitations began to run at that time, If a motion had been made and denied it would not have been conclusive, (Simpson v. Hart, 14 J. R. 63.) Such a motion might have resulted in a feigned issue. The same principle would compel a party to prosecute that to an end, or else, if the motion should be denied, to proceed by suit against the prior judgment creditor, and, if then successful, a suit against the sheriff would be as necessary, in a case of this kind as before, and thus two suits be necessary to enforce one right. ¡Neither law nor justice imposes on a party the expense or delay which would thus result. (5.) In a case where the sheriff has done his whole duty, and has the money ready to be paid over to the party, upon his having prior judgment declared fraudulent, he is Undoubtedly, or ought to be, entitled to protection. In such a
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case, the court might either enlarge the time to make his return, or, if suit should be brought, might stay the proceedings until the prior execution should be set aside. But whether so or not, makes no difference in this case—certainly he could never be relieved in that way, unless he shows clean hands, and is free from all negligence and collusion. And so it has been held under the English interpleader act. (1 Smith’s Leading Cases, (1837), 429, 30, margin 240; Duden v. Long, 1 Bing. N. C. 300; Ostler v. Bower, 4 Dowl. 259; Braine v. Hunt, 4 Tyrwh. 244; Cook v. Allen, 3 id. 586.)
II. The judge erred in nonsuiting the plaintiff also, because it appeared the prior executions, both of Yyse and Toler, were dormant. This fully appears by the answer, setting up consents to delay by all parties, the defendant’s testimony, exempting the plaintiffs from this charge, leaving it to stand against the Vyse and Toler executions, and the consent, in writing, of all parties but the plaintiffs. The answer admits, besides the full amount of Yyse’s execution, that he received $439.76, which he kept for a bad reason, and $52.24 more, which he kept without any reason. (Smith’s Leading Cases, ed. 1847, p. 7; Bradley v. Windham, 1 Wils. 44; Benjamin v. Smith, 4 Wend. 332 ; Kellogg v. Griffin, 17 J. R. 275, id. 332 ; Camp v. Chamberlain, 5 Denio, 198 .)
III. The court erred also in the following particulars. 1. In ruling’out the two facts proposed to be proved by Treadwell. In reference to the second of those facts it was competent to show the sheriff had notice. (Camp v. Chamberlain, supra.) 2 . In ruling as stated, that plaintiffs could not go into evidence to reduce the amount of Toler’s claim under his judgment. 3. In overruling the question to the witness, Angelina Brown, and the offer of testimony by that witness. The plaintiff had given testimony by Purdy, to show that the property was on hand at the time of the levy, &c. 4. Also, in overruling the question to John Fleming.
IV. Upon the evidence given the plaintiff was entitled to recover, and the court erred in granting a non-suit.
A. J. Vanderpoel, for the defendant,
resisted the motion upon the following grounds.
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I. The return by the sheriff of nulld Iona Was primó fads evidence iti his own favor, and must be taken as true until satis* factorily contradicted by the plaintiffs, (Browning v. Hanford, 7 Hill, 120 .)
H. The ruling of the justice that the plaintiffs could not recover unless they showed more property than was srifflcient to provide for the debt of Toler and Olsen, both as specified in the notice or agreement of December' 27,1847$ was correct until this was proven; it is clear that the plaintiffs had not sustained any injury, and the nonsuit Was therefore properly granted. ( Wintle v. Freeman, 1 Gale & D. 9; S. C. in 11 Ad. & E. 53 9 Id. in 5 Jurist, 960; Champenois v. White, 1 Wend. 92 ; Ramsey v. Nornabell, 3 Per. & D. 253.) (a) Had the sheriff wholly neglected to sell, he wtiuld not be liable to a junior execution creditor where the property attached or levied upon would be insufficient to satisfy the former executions upon it. (Smith v. Hogan, 4 Ala. 93 ; Gains v. Downs, Harper, 72.)
III. The evidence offered to impeach the judgment in favor* of Toler was properly rejected it Would have only been proper after having shown that the sheriff Was indemnified or was a party to the fraud, for if indemnified he Would stand in the place of the first creditor; if a patty to a fraud he would not be entitled to any favor before the court, and must make good to a creditor any loss his fraudulent conduct may have occasioned. (a) The sheriff is bound to execute all process regular upon its face, arid in an action against him for money had and received* it would be unnecessary for Toler to prove anything more than the delivery of Ms execution to him, and the receipt of the money. (Earl v. Camp, 16 Wend. 566 ; Lawton v. Erwin, 9 Wend. 233 , 237 Elliot v. Cronk, 13 Wend. 35 .) (b) In an action against him for not levying* he can only impeach the judgment When it has been obtained by fraüd, and carinot go into evidence of Collateral fraud. (Tyler v. the Duke of Leeds, 2 Stark R. 218 ) Adams v. Balch, 5 Greenl. 188.) (c) There Was nothing on the face of the execution or judgment to exempt the sheriff from his ordinary liability to the plaintiff in the process, (d) The plaintiffs did not offer to show that the sheriff had any notice of the alleged fraud* hut only that Magher claimed precedence of Toler, (e) The sheriff is not bound to
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try, and cannot try the question of fraud, or decide which of the parties is entitled to a preference! He inust execute the Write according to their priority. Toler not having indemnified the sheriff, would not be bound by a judgment against him determining his, Toler’s, execution to be fraudulent and void; but the defendant, if a recovery is allowed in favor of plaintiff, would be made answerable to both execution creditors. In Barber v. Mitchell, 2 Dowl. P. C. 574, Patteson J. expressed his opinion that a judgment could not be shown to have been fraudulent as against creditors in an action against the sheriff, unless it appears he was a party to the fraud. So in Wintle v. Freeman, 1 Gale & D. 93, it was held it was not competent for the plaintiffs to give evidence impeaching the validity of the execution unless the sheriff is indemnified. (Warmoll v. Young, 8 D. & R. 448.) S. C. in 12, E. C. L. R. 347, decides the same point $ the sheriff was made liable, however, in that case, because by unfair conduct he had prevented the plaintiff in the second process from making his motion, and thus lent-himself to the other party. In Lovick v. Crowder, 8 B. & Cr. 132, and 2 Man. & Ry. 84, the execution was delivered to the Sheriff under such circumstances of fraud as to make him a party to it. Rich v. Bell, 10 Mass. 294 , was case against an officer for neglecting to keep goods attached by him, so that they might have been taken in execution, although the officer had neglected his official duty, yet it appearing that if he had -adhered to it the plaintiffs would have derived no benefit from their attachment, they were held entitled to nominal damages Only. Saunders v. Sheriff of Middlesex, 3 Barn, and Ald. 95, Will not aid the plaintiff. There the sheriff had the moneys in his hands, and the first execution Was set aside on motion, then instead of applying the money on the second execution, and without giving any notice to the plaintiff therein that the first execution was set aside, he paid the money to the defendant and returned the execution milla bona. (1 Law Reg. R. 210.) Although two years and a half had elapsed intermediate the Collection of the moneys and the commencement of this suit, it does hot appear on behalf of the plaintiffs that they ever took any steps to set aside Toler’s judgment and execution. Bor did they seek to show that the sheriff had been guilty of any
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fraud, collusion, or favoritism, or in any manner so conducted himself as to affect their position with relation to the Toler execution and judgment, or embarrass them in their efforts to avoid it, but the defendant offered to show that the whole matter had been adjudicated and determined against the plaintiffs.
IV. There was no evidence of fraud in Toler’s judgment; the agreement of the 27th of December, 1847, was no evidence of fraud, but rather proves the good faith of the parties, (a) A judgment or a mortgage may be taken to secure a present indebtedness and future liabilities or advances. (Livingston v. Tracy, 16 John. 165 ; Bk. of Utica v. Finch, 3 Barb. Chy. 293.) (b) It may be shown by parol, and need not appear on the face of the judgment or mortgage. (Truscott v. King, 6 Barb. S. C. R. 346.) (c) Eor did it invalidate the judgment that it was confessed to Toler for the benefit of himself and others. (Truscott v. King, 6 Barb. S. C. R. 346; Commercial Bank v. Cunningham, 24 Pick. R. 270.) (d) There was no evidence that Purdy had any more property than was sufficient to satisfy the debts of Vyse & Toler—the presumptions are in favor of the truth of the return. ( 6 Hill. 242 .)
V. The judge properly excluded the evidence offered of the value of the goods in the house occupied by Purdy on the 7th of April, 1848. The sheriff could not levy the execution after its return day. (Vail v. Lewis, 4 John. 450 ; Shelton v. Westervelt in this court not reported.[1] ) (a) Eo offer was made to show the value of property in Purdy’s possession during the lifetime of the execution, so that the sheriff’s return stands wholly unimpeached.
VI. By the instructions to the deputy the attorneys made the deputy their private agent, and thereby discharged the sheriff, (Gorham v. Gale, 7 Mass. 739 ; Mickles v. Hart, 1 Denio, 548 ; Walker v. Haskell, 11 Mass. 177 ; Corning et al. v. Southerland, 3 Hill, 552 ; Walter v. Sykes, 22 Wend. 566 .)
YH. The judgment of the special term should be affirmed with costs.

When the three executions first named in the complaint were returned, the execution in favor of Toler was in the sheriff’s hands unreturned. It was regular on its face, and assuming it to he valid, it was the duty of the sheriff to apply upon it any surplus remaining, after satisfying the execution in favor of Vyse. Assuming the Toler execution to be valid, and that it had not lost the priority which its prior delivery acquired, the return made to each of the three executions, by virtue of which the plaintiff claims, was a true return. Purdy had no property out of which any part of either of those three executions could be collected.

The mere fact, that the judgment in favor of Toler was Confessed to secure as well a debt owing to Olsen, as one owing to Toler, did not render it void (Truscott v. King, 6 Barb. S. C. R. 346; Bank of Utica v. French, 3 Barb. Chan. R. 293; L ivingston v. Tracy, 6 J. R. 165). Nor is there any such evidence of an effort to collect more upon it than was due to the two, as would justify the sheriff in acting upon the presumption that it was confessed with an intent to defraud creditors, or would authorize a jury to find, or the court to declare, that it was confessed with such an intent.

Is there any such evidence of interference by the plaintiff in the Toler execution, or by his attorney, to delay a sale, or to give indulgence to the judgment debtor, as in judgment of law will deprive it of its priority ?

Prior to December 27,1847, there is no evidence of anything more than mere acquiescence on the part of Toler, in the delay to sell up to that time. His execution was returnable on the 17th of December, 1847. The sheriff could not have been coerced to sell sooner than on that day. If he had sold and returned the execution on that day, he would have completed its execution within the time allowed by law. On the 27th of December, after the lapse of ten days from the return day, the attorney of the plaintiff in the Toler judgment, and also the attorney in the Magher judgment, and the attorneys of the plaintiffs in two other judgments, consented that the sale under their executions might be adjourned thirty days, without prejudice to any party. This consent was sent to the deputy sheriff, and not to the judgment debtor. Why it was obtained or

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given is not shown, The court has no fact before it, but the fact that such a consent was given, The paper does not, in terms or by implication, authorize the sheriff to leave the property with the judgment debtor, or absolve him from liability for its safe keeping. It would, perhaps, be an answer to an action by either of them against the sheriff for not returning his execution within those thirty days. It merely permits him, in his discretion, to adjourn, the sale thirty days, which implies that he had already given notice of a sale to be had under these executions. There was no agreement for delay between either of those plaintiffs and the judgment debtor. The consent, standing alone, would seem to amount to no more than a declaration on the part of those giving it, that they would acquiesce in a further indulgence for the period of thirty days, but it is not an agreement with the debtor that he shall have such indulgence, or the use of the property for that period. Certainly it does not instruct the sheriff to delay the sale.

In Russell v. Gibbs (5 Cowen, 395), the court remarked l " But to say that an implied indulgence of six months, when Uo other creditor Was pressing, is such a culpable negligence as to become per se evidence of a fraudulent intent to cover the defendant’s property, and to delay and hinder his other Creditors from collecting their just debts, wotild be judging very harshly of the motives of om‘ fellow-citizens, and inculcating a degree of rigor, which may become highly oppressive to Unfortunate debtors.”

In Benjamin v. Smith ( 4 Wend, 332 ), Eathbüñ & Hunt, in March, 1827, directed the sheriff not to sell on an execution in their favor, which he had levied on the property of the debtor. Until the first of July, After the first of July, their conversations with the deputy induced him to believe, and act on the belief, that he Was to have further orders before acting, and the court thought such an inference might be drawn by the jury, and if drawn, the execution would be dormant as against one levied on the 23d of October, 1847. The Court said, that the proper instruction to be given to the jury on a new trial was, that they should “ find the first execution dormant, or fraudulent, as to the execution of the plaintiff, if the delay on it,

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down to the time of the sale, was occasioned by the interference of the plaintiffs therein.”

In Benjamin v. Smith, the court refers to Russell v. Gibbs, as containing an accurate statement of the principles applicable to this point, Benjamin v. Smith again came before the court, after it had been tried a second time. On the second trial the jury were instructed, in conformity with the rule laid down in 4th Wend, 336, and found a verdict for the defendant. The court said the verdict could not be interfered with, on the ground that, that fact was found " against the weight of evidence, There was sufficient doubt in the case to preclude the interference of the court with the finding of the jury,” ( 13 Wend. 406 .)

Where the lapse of time has not been so great, as of itself to justify an inference, that the prior execution was used as a mere cover to protect the debtor’s property, something more' than mere acquiescence in the property being left with the debtor, or an express permission to so leave it, or an acquiescence in a delay to sell, whether that acquiescence be implied or expressed, is necessary to raise an inference that the prior execution is fraudulent.

Where there has been no agreement with the debtor for further time, nor any instructions to the sheriff to delay a sale, nor interference to prevent him from discharging his duty, a delay, on his part, to sell for forty-seven days, after the return day of the execution, acquiesced in by the plaintiff will not, of itself, authorize the jury to find, or the court to declare, the prior execution dormant, or what is treated as the same thing, fraudulent.

Rew v. Barber (3 Cowen, 280): This is the extent of the proof given, or offered on this point.

If the Toler execution had become dormant, the Magher execution, on which the plaintiffs claim, had also become dormant, as the attorney in that consented to the adjournment. Hence the plaintiffs, in order to establish a right to have the execution issued on the judgments recovered in their favor, declared to be entitled to a priority, must concede that the Magher execution, by virtue of which they also claim to recover, became dormant or fraudulent as to their other two

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executions, by reason of the consent to the adjournment of the sale.

We do not think that the proof given shows primd facie, that either execution had become dormant, or fraudulent, as to either of the junior executions.

The important question presented by the record is, was it competent for the plaintiffs to show, in this action, that the Toler judgment was confessed with intent to hinder, delay, and defraud the creditors of Purdy ?

It is a general rule, that a sheriff who receives a process issuing out of a court of general jurisdiction, and regular on its face, is bound to execute it. Though it may be voidable, it is not so at his election, but only at the election of the party affected by it. If not void, but irregular only, it is a protection to him, and he must obey its mandate. (Parmele v. Hitchcock, 12 Wend. 96 ; Saracool v. Boughton, 5 Wend. 170 .)

Process regular on its face, though in fact void for the reason that the pre-requisites to conferring jurisdiction were not complied with, will protect the officer acting under it from an action by the party against whom it is issued. Yet the party at whose instance it was issued cannot justify under it, nor maintain an action against the officer for refusing to execute it. When sued by the plaintiff he may show in his defence that the process was void, for want of jurisdiction of the court issuing it. (Horton v. Hendershot, 1 Hill, 118 ; Earl v. Camp, 16 Wend. 562 .)

The Revised Statutes declare that every “ suit commenced, decree or judgment suffered, with the intent to hinder, delay, or defraud creditors,” as against the persons so hindered, delayed, or defrauded, shall be void. (2 R. S. 137, § 1.)

The plaintiffs’ counsel offered to show that the Toler judgment was confessed with intent to hinder, delay, and defraud the creditors of Purdy, and that the same and the execution, were and are fraudulent and void against the plaintiffs.

The reply alleged that the sheriff had notice of this fact before he sold on the execution.

The objection taken to the evidence offered was not that the plaintiffs’ offer was not broad enough—not that he did not also offer to show notice to the sheriff, but it was, that the bona fides

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of the prior execution could not he inquired into in this action, and on such objection the evidence was excluded.

At a later stage of the trial the plaintiff offered to prove facts tending to impeach the bona fides of the Toler judgment, and that the defendant, before the sale, was notified by the attorney in the Magher judgment, that Magher claimed in opposition, and in preference to the claim of Toler. The court excluded the evidence.

The case shows, as I think, that the evidence was excluded expressly on the ground that the sheriff could not be charged by proof in this action—that the Toler judgment was fraudulent and void as against creditors, although the defendant was so notified before he sold on the execution.

The plaintiff insists that it was competent to prove those facts, and that proof of them would establish the falsity of the returns to the executions in question.

It is to be observed that the proof offered does not relate to the jurisdictional capacity of the court to render the judgment and award the execution; but it is offered on the assumption, that conceding such jurisdiction, the judgment may, in this action, be shown to be void, as to creditors of the debtor, though conclusive as between the parties to the record, and if so shown the sheriff will be liable.

On the assumption here made of the ground on which the evidence offered was excluded, this case presents the question —whether a junior execution creditor, in an action against the sheriff for falsely returning it nulla bona, can maintain his action by proof that a prior execution was issued on a judgment confessed with intent to defraud creditors, and of a notice to the sheriff of that fact, while both executions were in his hands, and of a claim made on that ground to have the proceeds of the property levied on applied on his execution ?

Several cases have been cited by the plaintiffs’ counsel, which are claimed to have, settled that question in the affirmative.

In Warmoll v. Young, 5 Barn. & Cress. 660, the sheriff was notified on the 29th of December, 1824, the ninth day after receiving the junior execution, to retain the proceeds of the property levied upon in his hands, as proceedings would be

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taken to set aside the prior judgment and execution. A few days thereafter the sheriff was ruled to return the prior execution. He gave no information to the plaintiff that he had been so ruled, but paid over the proceeds to the plaintiff in the prior execution on the 31st of January, 1825.

The prior execution, and the judgment on which it was issued, were proved to be fraudulent, and the plaintiff in the previous execution was permitted to recover,

Abbott, Oh, J,, said: “ It appears to me that it was the duty of the sheriff, when served with the rule to return Knight’s writ, to inform the present plaintiffs of it, that they might corn eider whether they could take steps promptly to set aside the judgment, If he had informed them of it, and they bad taken no steps, there would have been strong ground to maintain that the sheriff was justified in obeying the process that came to his hand. Hot having so informed the plaintiffs, I think the sheriff appears to have lent himself to Knight, and therefore he must stand or fall by the right that Knight had, and Knight had no right, for his judgment was evidently fraudulent.” Bailey, J., seems to have concurred in deciding the case on this principle. He expressly says : " That the sheriff was not bound to try the question of fraud, or to decide which of the two creditors should have the preference, but he ought to have stood indifferent between the parties, and not to have lent himself to either,”

Holroyd, J., said: " I have entertained some doubt, in the course of the argument, whether the present plaintiffs ought not, in pursuance of the notice they gave to the sheriff, to have applied to the court, within the first six days of the term, to set aside Knight’s execution, and to have the money paid over to them. But I incline to think that it was the duty of the sheriff to have informed the plaintiffs before he paid the money that he had been served with the rule to return the writ,”

If Warmoll v. Young states the rules applicable to such a case correctly, then it must be considered as a principle of law, that a sheriff is not bound to decide on the lona fides of judgments on which the executions in his hands have been issued, nor wait an indefinite time for a junior execution plaintiff, to Institute proceedings to avoid a prior execution, on the ground

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that though valid as against the parties to it, it is void as against himself.

It is distinctly declared, that the sheriff is not bound to take the risks of any such controversy. He is bound to do no act to defeat an avowed purpose of a junior execution creditor to institute proceedings to set aside the older writ. If he is distinctly notified that such proceedings will be taken, and is requested to retain the money levied until such proceedings can be had, and then pays over the money before the claimant is chargeable with laches in not applying, or under such circumstances as will implicate him, as acting in concert with the plaintiff in the older execution, he pays it over at the risk of being held liable, if the prior execution and judgment shall be proved to be fraudulent.

The notice to the sheriff, which was offered to be proved, was given before the sale of the property, which took place on the 31st of January, 1848. None of the executions belonging to the plaintiffs were returned until the subsequent June; over four months elapsed between the time the notice was given to the sheriff and the time he returned the executions.

He was not bound to wait longer than this; and he was not bound to take upon himself the risk of deciding whether the claim made was or was not well founded.

It is the duty of a junior execution plaintiff, who claims that a prior execution is fraudulent as against him, as a creditor of the execution debtor, to move without any unreasonable delay, and procure a stay upon the sheriff’s returning the prior one, until the motion can be heard and decided. Nothing of the kind appears to have been done or attempted by these plaintiffs, In making this observation, I lay out of view the evidence offered by the defendant and rejected by the court, that these plaintiffs, in May, 1848, moved the supreme court to set aside Toler and Magher’s executions as being fraudulent and void, and that the sheriff, after satisfying Vyse’s execution, pay the surplus to these plaintiffs, and that such motion was argued and denied.

I can conjecture no reason why this evidence was rejected, except that it was the opinion of the presiding judge that an action against the sheriff for falsely returning nulla Iona to a

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junior execution would not be sustained merely by proof, that a prior judgment and execution were fraudulent as to creditors, and that the sheriff had been notified that the proceeds of the sale would be claimed by the plaintiff in the junior execution on that ground, and that therefore the evidence offered and rejected was immaterial.

Imray v. Magnay, 11 Meeson & Welsby, 273, seems to decide, that it was competent for the plaintiffs in this action to prove the execution fraudulent, when coupled with proof of notice to the sheriff that the proceeds of the sale would be claimed on that ground,

But in Remmett v. Lawrence, 1 Law and Equ. R. 260 (decided in 1850), Imray v. Magnay was doubted by the Queen’s Bench, and the decision made on it is, in our judgment, justly characterized as one “ placing a sheriff in a most perilous position, whatever course he pursues.”

In Lovick v. Crowder, 8 Barn. & Cress. 132, the sheriff was held liable. The court said, that when he found the defendant in possession of property, primó facie, it was his duty to levy on it. When he was informed that the officer of the former sheriff claimed it under a levy, it was the defendant’s duty to ask to see the warrant or execution. If he had done that, he would have known from its date, that there had been such gross delay as rendered it fraudulent and void. The most this case decides is, that when the sheriff knows of incontrovertible tacts, or by discharging his duty would ascertain the existence of such facts, which would render a prior execution fraudulent, it is his duty to treat it as such, and if he does not so treat it, he is liable to the plaintiff in the junior execution.

Fairfield v. Baldwin, 12 Pick. 388 , is distinguishable from the case before us. In the former, the plaintiff in the prior attachment added, under leave of the court, new counts in addition to the two set out in his attachment. The court held, that this, as matter of law, vacated the attachment as against a subsequent attaching creditor. On the day execution was issued on the judgment recovered in that action, Fairfield notified the sheriff that the attachment, if ever valid for any purpose, had been discharged by “ such proceedings as had since been had in that suit,” and that, as the next attaching creditor, he should

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claim to hold the goods attached to satisfy any judgment that might he recovered in his action. Fairfield prosecuted his suit diligently to judgment and execution, and required the sheriff to levy the execution on the property attached. Baldwin, however, returned that the property had been applied in part satisfaction of the execution in the first attachment suit, and returned Fairfield’s execution in no part satisfied.

If the amendments, adding causes of action to those stated in the attachment itself, had the effect, as matter of law, to vacate the first attachment as against one levied subsequently, but before the amendments, then the sheriff who executed both writs, when notified that such proceedings had been had in the first suit as to produce this result, was notified of a fact, or had such notice that on inquiry he might easily have ascertained the existence of a fact in itself incontrovertible, which made it his duty to apply the proceeds of the attached property on the plaintiff’s execution: this would decide the whole case, on the principle on which Lovick v. Crowder was decided.

The plaintiff was also permitted to prove that the prior judgment was fraudulent, on the ground that part of the sum recovered was not justly due. This was allowed, notwithstanding that suit was defended by the present plaintiff, under a statutory provision, allowing a subsequent attaching creditor to defend. The court, in its opinion on this branch of the case, lay stress upon the fact that the sheriff sold the goods under the first attachment, before a judgment was recovered, notwithstanding Baldwin had notified him he should resist the claim in that case as fraudulent, and also objected to any sale being made until judgment should be rendered in due course of law. This part of the opinion proceeds on the ground that the acts of the sheriff indicated that he had attempted to aid the views of the creditor first attaching, and the court said “ he must stand or fall according to the rights of the party to whom he has lent his aid.” The ground on which the decision relating to this branch of the case was placed, is the same that governed the court in the decision of Warmoll v. Young. It is not an authority for the proposition that a sheriff holding two executions, who is notified by the owner of the junior one, that he shall insist that the junior one is issued on a judgment

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fraudulent as against creditors, is bound to incur the risks of a litigation of that point, or to hold the proceeds of the property levied on an indefinite period of time, at the peril of being charged, by the junior execution creditor with the consequences of a false return, if he applies the money to satisfy the one first levied, and returns the ocher nulla bona. Ho such general proposition is affirmed by the court; on the contrary, its decision is placed on different grounds.

Saunders v. Sheriff of Middlesex (3 Barn. & Ald. 95) was decided on the ground that it was the sheriff’s own fault, that the moneys realized by a sale of property of the judgment debtor, had been ordered to be paid to the debtor by a rule of court; that the court would not have made such a rule if the fact had been made known to it, that the sheriff held an execution in favor of the plaintiff, and would have modified the rule on a motion based on affidavit of such a fact.

We are agreed in the opinion, that the plaintiffs cannot maintain this action, by giving the proof offered and rejected, relative to the Toler judgment having been confessed with an intent to defraud creditors.

A more serious difficulty is presented by other undisputed facts appearing in the case. The sheriff has in his hand $52.24, part of the proceeds of the property levied on while the executions belonging to the plaintiffs were in his hands, to which moneys he makes no personal claim, but which, as his reply states, are to be applied on the Toler execution. Besides the amount necessary to pay for the services for which compensation is specifically prescribed by the statute, he has in his hands the further sum of $439.76, which he claims the right to retain to his own use, to satisfy certain charges which are enumerated in the complaint.

It is not necessary to discuss the question whether he has a right to retain all or any part of the $439TW

If not entitled to retain the whole of it, his position as to the part he is not entitled to retain is the same as to the $52.24.

He is sued for falsely returning nulla bona to the plaintiff’s executions. The plaintiff make aprima fade case, by showing that he holds moneys which are the proceeds of defendant’s property, sold while these executions were in his hands. The

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sheriff meets this claim by showing that he received an execution in favor of Toler, against the same debtor, prior to 1ns receipt of those belonging to the plaintiff. If that execution was still in his hands, it would be a prima fade defence to this action. But he had returned that nulla bona before this action was brought. The defence is simply this: he is not liable to the plaintiff, because he has falsely returned mulla bona to a prior execution, when his duty required him, as between the execution creditors, to have applied the surplus on the Toler execution, and to have returned it satisfied pro tanto.

Can a sheriff protect himself against such an action, under a prior execution so returned? Is he at liberty to say this return is true, because another return is false, or to protect himself from the consequences of a return apparently false, by showing another return to be actually so ?

In Towne v. Crowder, 2 Car. and P. 356, Best, Ch. J., held that he could not.

There may be many reasons to justify such a return, notwithstanding the priority of the Toler execution. If the Toler judgment was fraudulent as against the plaintiffs, the sheriff, if he saw fit to do so, was at liberty to return it nulla bona, and if sued for a false return, could protect himself by proof of the plaintiff’s judgments and executions, and that the judgment in favor of Toler was confessed with intent to hinder, delay, and defraud the creditors of Purdy. (Shattock v. Carden et al., 11 L. & Eq. R. 570; Pierce v. Jackson, 6 Mass. 242 ; Lovick v. Crowder, supra.)

If the sheriff was notified that the Toler judgment was fraudulent and void as against the plaintiffs, and that they should, on that ground, insist on having the proceeds of the sale applied on their executions, the sheriff, if cognizant of facts.which would incontrovertibly establish the fraud, not only had the right, but it was his duty to return the Toler execution unsatisfied. Whatever may be the reason which induced him to so return it, we are satisfied that he cannot defend this action by showing that return to be false.

To justify under a levy by a prior execution, he must either have executed such execution by an application upon it of the proceeds of the property sold, or have it in his hands unre

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turned. If he has neither executed it, and applied the proceeds of the property upon it, nor has it in his hands, so that he is bound and has authority to execute it, and make such application, but, on the contrary, has returned it nulla lona, he is'not at liberty to say in such an action, that the return is false, that it was his duty to have applied the money on the execution, against his return, that it was not his duty, and that, therefore, the present plaintiffs are not entitled to recover. On this ground, a new trial must be ordered, with costs to abide the event.

Cases cited