Paton v. Westervelt.

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, primâ 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 facts, 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

Paton v. Westervelt.

claim to hold the goods attached to satisfy any judgment that might be 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

Paton v. Westervelt.

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 other nulla bona. No 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 $439.

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 a prima facie case, by showing that he holds moneys which are the proceeds of defendant's property, sold while these executions were in his hands. The

Paton v. Westervelt.

sheriff meets this claim by showing that he received an execution in favor of Toler, against the same debtor, prior to his receipt of those belonging to the plaintiff. If that execution was still in his hands, it would be a primâ facie 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 nulla 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

Coddington v. White.

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 bona, 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.

CODDINGTON v. WHITE & MONEYPENNY.

The plaintiff was the owner of a quantity of pig-iron, lying on Pier 37, North River, which the defendants—one as the superintendent of public streets, the other as a dockmaster-gave notice, unless removed on or before the 3d of September then instant, would be taken to the public yard, and there disposed of, as the ordinances of the corporation direct.

On the morning, and early in the afternoon of the 3d September, the defendants caused the iron to be taken to the public yard, and the plaintiff was compelled to pay a considerable sum for charges and expenses, as the condition of its restoration. Had not the iron been taken to the public yard, it would have been removed on the same day by a person to whom the plaintiff had sold it. Held, that the notice, by its fair construction, gave to the plaintiff, as owner of the iron, the whole of the 3d of September, to make the removal that was ordered; and that the defendants, by taking it to the public yard, at the time and in the manner they did, rendered themselves liable to him as trespassers.

Held, also, that the defendants, as public officers, were bound to act in conformity to the city ordinances, and to the terms of the notice; and could not defend themselves upon the ground, that, as private citizens, they had a right to remove the iron, as a nuisance.

(Before DUER, BOSWORTH, and EMMET, J.J.)

October 25. November 19, 1853.

MOTION, on the part of the defendant, for a new trial, upon a case and exceptions.

The action was brought to recover damages for the wrongful and malicious taking and detention by the defendants, of certain personal property belonging to the plaintiff.