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respecting bad debts, and alleged that all the evidence concerning the debts was produced before the referees and fully heard; and that all debts of the co-partnership from the beginning, except about $1,500, had been paid. That execution was issued upon the judgment to the sheriff of New York in February, 1852, and to the sheriff of Kings in December, 1852. That on the 9th of May, 1853, both sheriffs had been notified to execute the writs, and return them according to law. That neither of the executions had been returned; and on July 30th attachments had been issued against both sheriffs for the contempt, and those proceedings were still pending; and that both sheriffs insisted they had no property under levy or in their custody out of which to satisfy the executions; and that Thursby, in his will, expressly provided for the payment of this judgment.
Defendant also set up, by way of defence, that the suit for review must be brought within two years, and a condition precedent to filing such bill, was the performance of such parts of the decree not sought to be reviewed; and that no part of the judgment was paid.
Daniel LORD & N. Dane Ellingwood, for plaintiffs, Referred to 4 How. Pr. Rep., p. 113.
Albert Mathews, for defendant, Cited—Chancery Rules, 173, 90; Code, $$ 332, 468, 469; Williams agt. Baldwin, 18 Johns. 489; 3 Munf. R. 112; 5 Wend. 127; 6 Munf. R. 425; 10 Wend. 285; 5 Mason R. 303 : 2 John. Ch. R. 488; 3 Paige R. 206; 1st. Bibb. R. 455.
EDWARDS, Justice. The ground upon which the plaintiffs ask for an injunction is, that John Thursby, in the suit brought against him by the defendant Mills, accidentally omitted to prove before the referees that certain debts, contracted in the partnership business between Thursby and Mills, were bad. It appears that the report of the referees was made in the year
Mills agt. Thursby and others, ex’rs, &c. 1851 ; and that, in the written opinion delivered by them, they stated that they found “that Thursby had exonerated Mills from all losses in the business, as between themselves; and that it was unnecessary for the referees to determine whether the debts due to the firm were by persons of pecuniary means or not.” At the time that this report was made, Thursby either knew or had the means of knowing whether any, and, if any, which of the debts were bad. He was at that time informed of the necessity of proving that fact, if he intended to do so.
Since the report was made, judgment has been entered, and an execution issued; and although numerous and multifarious motions have been made which have had the effect of preventing the defendant from obtaining satisfaction of his judgment, still no application has, until now, been made to the court for relief on the ground of any mistake or misapprehension; and no excuse is given for this great delay. I do not think that the plaintiff has made out such a case as entitles him to an injunction.
Motion denied, with $10 costs.
David S. Mills agt. John B. THURSBY and others, executors,
&c., of John THURSBY, deceased.
Where it appeared that executions were issued upon a judgment against the de
fendant, one to the sheriff of Kings and one to the sheriff of New York, that the latter had levied upon sufficient property to satisfy the execution, but the defendant had obtained, by default, a stay of proceedings, during which stay
the property levied upon was withdrawn from the effect of the execution, Held, under such circumstances, the plaintiff should not be stayed in enforcing
his levy in Kings county.
New-York Special Term, October, 1853.
This was 'a motion for an order to restrain the sheriff of Kings county from making sale of the property of John Thursby, deceased, against whom the plaintiff had recovered a judgment in September, 1851, for 19,455.78, upon which executions had been issued by the plaintiff, in the lifetime of the judgmentdebtor, to the sheriffs of New-York and Kings counties. Appeal having been taken to the general term, and the suit revived by the executors of Thursby, but no stay of proceedings. The defendants alleged that the sheriff of New-York had levied upon property of Thursby sufficient to satisfy the judgment, and that the sheriff of Kings pretended he had made a levy upon property sufficient to satisfy the debt. That the defendants had filed their complaint in this court for a review of the finding of the referees, upon which the judgment was entered, on the ground of an accidental omission on the part of Thursby to prove before them certain alleged bad bebts, amounting to about $10,000; and in that suit they had prayed for an injunction against the enforcement of the judgment; and that the sheriff of Kings county had advertised the real estate of John Thursby for sale on the 5th of November, and his personal estate on the 22d of October, 1853.
The plaintiff denied the allegation as to bad debts, and alleged that an order for a stay of proceedings of the sheriff of New-York had once been obtained by default; and, before the stay was vacated, John Thursby had re-possessed himself of the property levied upon by the sheriff.
N. Dane Ellingwood, for defendants, Cited 6 Wend. R. 562 ; 20 Johns. R. 294.
ALBERT MATHEWS, for plaintiff, Cited 4 Hill, 619; 23 Wend. 490.
EDWARDS, Justice. The affidavit of the defendant alleges, that a levy was made under an execution issued in New York,
but it does not state that the judgment has, in fact, been satisfied, nor that there is any property now held under the levy. The plaintiff's affidavit alleges that an order was obtained by default, during the accidental absence of his counsel, and that, before it was set aside, the property levied on was withdrawn , from the effect of the execution. .
Under these circumstances, I see no good reason why the plaintiff should be restrained from enforcing his levy in Kings county.
Motion denied, with $10 costs.
David S. Mills agt. John B. THURSBY and others, execu
Where it appeared that the sheriff called upon the defendant in the execution,
at his place of business, and at his house, and informed him that he made a levy upon the personal property then visible; and it was understood between the defendant and the sheriff this should be considered a levy upon enough, besides upon the same premises, to satisfy the execution; but the sheriff made no inventory or other levy, and the defendant requested him not to remove any property or disturb his family by any further levy, and promised the
judgment should be settled, Held, that this was a sufficient levy upon the personal property of the defendant,
but not sufficient to hold the real estate.'
New-York Special Term, November 26, 1853.
This was a motion for a stay of proceedings and to vacate a levy made by the sheriff of Kings County, upon property of John Thursby, deceased, under an execution issued in his life time, upon a judgment recovered in this action, September, 1851, for
$19,455.78; appeal having been taken to the general term, and the suit revived by the defendants. They alleged that the sheriff falsely pretended to have made a levy upon the personal property of the deceased, who had been one of the official sureties of the sheriff, and possessed of large property, which fact was known to the sheriff; that upon the receipt of the execution, the sheriff had written a note to John Thursby, requesting to see him; that Thursby called upon the sheriff, and upon learning of the execution, informed the sheriff that a stay of proceedings would be procured, and requested him not to proceed. That soon after, a stay of proceedings was procured, and the sheriff never did proceed. That, subsequently, after the death of Thursby, and the revival of the suit, the sheriff had been notified to return the execution, and thereupon pretending he had made a levy upon the personal property of Thursby, he had advertised it for sale under the execution. That no levy had been in fact made, until after the death of John Thursby, and until after the expiration of sixty days, during which, the sheriff was bound to have executed the writ. That the sheriff had also advertised for sale, under the execution, the real estate of Thursby, of which he was possessed at the time of his death; but that no levy had ever been made upon it, nor had it been advertised for sale until after the death of John Thursby, and after the expiration of sixty days, during which the sheriff was bound to have executed the writ.
The plaintiff alleged that the sheriff had called upon the defendant in the execution, and notified him of its existence, and being in a room of the defendant's house, and also at his place of business in Kings County, informed him that he made a levy upon the personal property then visible ; and it was understood between the defendant and the sheriff this should be considered a levy upon enough, besides upon the same premises, to satisfy the execution ; but he made no inventory or other levy; and the defendant requested him not to remove any property, or disturb his family by any further levy, and promised the judgment should be settled ; and the sheriff averred that his proceedings under the execution, had been stayed nearly all