Against Property;-The Levy, and the Custody of the Property.

levy on his debtor's goods, and leave them in his hands, the execution is fraudulent, does not apply where all the possession be taken of which the chattel is susceptible,-6. g., where a growing crop is levied on and sale delayed until harvest. Supreme Ct., 1807, Whipple . Foot, 2 Johns., 418.

289. After levy on property,-e. g., a growing crop,-it is in the custody of the law, and cannot be distrained and sold by a collector of taxes, for a tax of the defendant. Supreme Ct., 1819, Hartwell v. Bissell, 17 Johns., 128.

290. Deposit of goods. A sheriff who levies upon property may leave it in the possession of a third person, until the same can be advertised and sold, and take security from such person to redeliver the property, or pay the amount of the execution with the sheriff's fees, though any agreement with such third

283. Creditor's consent. Nor does it apply where there is no evidence that plaintiff consented to the delay, nor evidence of such delay as would afford legal presumption of fraud. 1811, Doty v. Turner, 8 Johns., 20. 284. The fact that the creditor allowed pon-person that the property should be absolutely derous articles, not easily removable, to remain for a few days in the possession of the debtor, is not, per se, evidence that the execution and levy were fraudulent as to a junior execution; but permitting the debtor to consume the property, is, constructively, if not actually, fraudulent. Supreme Ct., 1818, Farrington . Sinclair, 15 Johns., 428; Farrington . Caswell, Id., 430; S. P., 1820, Dickenson v. Cook, 17 Id., 332.

his, on his paying the amount of the execution, would be illegal and void. Ct. of Errors, 1840, Burrall v. Acker, 23 Wend., 606; affirming S. C., 21 Id., 605.

291. A receiptor cannot, under any circumstances, defend against the officer upon the ground of an excessive levy. Supreme Ct., 1842, Dezell v. Odell, 3 Hill, 215.

292. The plaintiff in the execution has no property in goods in the officer's custody under a levy, and cannot maintain an action for their wrongful taking by a third person. Supreme Ct., 1845, Barker Mathews, 1 Den., 335.

285. Returning goods to debtor. The act of the sheriff in returning the goods, after levy, to the defendant's custody, in pursuance of the creditor's direction, but without any direction to suspend or delay the execution, 293. Nor can he maintain an action in does not render it fraudulent or void, and the such case for the consequential damages, if, notsheriff may retake the property from a pur- withstanding the conversion, there remained chaser in good faith from the defendant. Su-sufficient property bound by the levy. Supreme Ct., 1824, Rew v. Barber, 3 Cow., preme Ct., 1848, Marsh v. White, 3 Barb., 518. 272; approved, 1826, Russell v. Gibbs, 5 Id., 390.

286. Tax warrant. The levying upon personal property of a warrant for the collection of an unpaid tax, does not defeat a previous levy of an execution upon the same goods, by the sheriff. A bona-fide purchaser at the sheriff's sale obtains a title to such goods, free from any lien for the tax. Supreme Ct., Sp. T., 1858, Fuller v. Allen, 7 Abbotts' Pr., 12.

294. Superseding levy. A levy under a fieri facias not superseded by an allowance of a certiorari. Supreme Ct., 1812, Blanchard v. Myers,* 9 Johns., 66.

Nor by allowance of a writ of error. 1819, Kinnie v. Whitford, 17 Id., 34.

295. Error. The party has four clear juridical days after final judgment, to bring error and put in bail, and so doing will prevent or supersede execution. If this be not done within the four days, an execution levied cannot be superseded, but the party must be left to his judgment of restitution, if he have it Supreme Ct., 1814, Brisban v. Caines, 11 Johns., 197; 1823, Blunt v. Greenwood, 1 Çow., 15; 1827, Jackson v. Schauber, 7 Id., 288. After seizure under execution, the 417; and again, Id., 490; Beekman v. Bemus, goods are, in judgment of law, in the officer's Id., 418; 1828, People v. New York C. P., possession as against a wrongdoer, and one 1 Wend., 81.

287. Custody of the law. Goods taken in execution from the custody of the defendant, where he does not hold them as servant or agent, are in the custody of the law, and cannot be replevied. Supreme Ct., 1829, Hall v. Tuttle, 2 Wend., 475.

with whom the officer leaves them for safe-keep

* See this case commented on in Payfer v. Bissell,

ing is merely his servant. [7 T. R., 12.] Su-
preme Ct., 1810, Smith v. Burtis, 6 Johns., 197.3 Hill, 289.

Against Property;-Priority among Executions.

296. Certiorari if served after levy made, the under-sheriff was appointed to his place,does not supersede the execution. Supreme Ct., 1842, Payfer v. Bissell, 3 Hill, 239. To the same effect, Blanchard v. Myers, 9 Johns., 66; Kinnie v. Whitford, 17 Id., 34.

297. Error stays proceedings. Under 2 Rev. Stat., 2 ed., 494, a writ of error and order stays further proceedings on an execution which has been levied. A levy is not a full execution within the statute. Supreme Ct., 1842, Delafield v. Sandford, 3 Hill, 473.

298. A Supreme Court commissioner's stay of proceedings, on execution issued, does not prevent a levy. 2 Rev. Stat., 280, § 22.

299. Appeal. Under the provision of section 307 of the Code,-that service of a certified copy of an undertaking of appeal from the Marine Court shall, if execution have been issued, "stay further proceedings thereon," the stay does not discharge a levy made, but leaves property previously levied on in the control of the sheriff. N. Y. Com. Pl., 1854, Smith v. Allen, 2 E. D. Smith, 259.

300. The defendant perfected his appeal from a judgment of a justice's court, after execution had been issued, and when it was in a constable's hands; but before levy he served a copy of his undertaking upon the plaintiff, though not upon the constable. After receiving the copy undertaking, the plaintiff directed the constable to levy. Held, that the levy should be set aside, as made in bad faith. N. Y. Com. Pl., 1858, Jones v. McCarl, 7 Abbotts' Pr., 418.

301. Opening default. When a non-resident defendant is permitted, after judgment, to come in and defend, that fact does not of itself open the judgment, or stay proceedings upon the execution. Supreme Ct., Sp. T., 1854, Carswell v. Neville, 12 How. Pr., 445.

6. Priority among Executions. 302. Equitable rights. The court will take notice of the equitable rights of parties where they are clearly ascertained. Supreme Ct., 1821, Bank of Auburn . Throop, 18 Johns., 505.

But when there are so many parties, or the facts are so complex that complete justice cannot be done, the court will order a stay, so as to give the party an opportunity to apply to the Court of Chancery. 1819, Lansing v. Orcott, 16 Johns., 4.

Held, that the plaintiffs in several executions in his hands should be paid according to the priority of the several judgments, without reference to the fact that some of the executions were delivered to him as under-sheriff and some as sheriff. Supreme Ct., 1820, Ward v. Storey, 18 Johns., 120.

Where a sheriff has

304. Several levies. two executions against the same defendant, and having levied part of the amount of the prior execution, proceeds, after the return-day of that execution, to make another levy, he must apply the sum thus made to the junior execution. Supreme Ct., 1816, Slingerland v. Swart, 18 Johns., 255; S. P., 1809, Vail v. Lewis, 4 Id., 450.

305. If two executions are duly delivered to the sheriff, and he levies under the one last delivered, the one first delivered will nevertheless take precedence, provided an actual levy be made under it, before a sale of the goods under the other. Supreme Ct., 1848, Camp v. Chamberlain, 5 Den., 198.

306. Instructions to delay. Where the plaintiff, after levy, directed the sheriff not to sell until further orders, and afterwards, and on the same day that another execution was delivered, instructed him to proceed ;—Held, that the latter execution took preference. Supreme Ct., 1843, Knower v. Barnard, 5 Hill, 377.

307. Consent. 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 mean time. [5 Cow., 395; 4 Wend., 382; 8 Cow., 280.] N. Y. Superior Ct., 1858, Paton v. Westervelt, 12 N. Y. Leg. Obs., 7.

308. If, after levy, the goods be sold under a subsequent execution, the money must be applied to the first. [1 T. R., 729.] Supreme Ct., 1826, Russell v. Gibbs, 5 Cow., 390; and see Rowe v. Richardson, 5 Barb., 385.

309. Sale under several executions. Money collected by sale of goods upon two executions delivered together, issued upon judg

303. Where, on the death of a sheriff, ments docketed at the same time, is to be

Against Property;-Priority among Executions.

applied equally, until the smaller one is satisfied. Supreme Ct., 1823, Campbell v. Ruger, 1 Cor., 215.

310. If land be sold on two judgments, more than ten years after the docketing of the elder one, though the execution thereon was issued within the ten years, the money must be applied on the other. Supreme Ct., 1826, Roe v. Swart, 5 Cow., 294.

316. Removal of goods. The delivery of the execution to the sheriff binds the goods; so that where goods, after the delivery, but before actual levy, are removed by the debtor into another county, and there taken and sold by the sheriff of that county, under a junior execution, though the bona-fide purchaser at such sale acquires a valid title to the goods yet the proceeds in the hands of the sheriff will be ordered to be applied first to the first execution. Sapreme Ct., 1820, Lambert v. Paulding, 18 Johns., 311.

parties, declare the preference of the latter execution, on the motion of the plaintiff, and order the sheriff not to apply upon the Supreme Court execution money made by the levy. Supreme Ct., 1842, Kimball v. Munger,

311 If a sheriff has several executions in his hands, upon judgments docketed at different times, and has raised money enough to satisfy the oldest judgment, it is his duty to 317. Several courts. If an execution from proceed and sell the residue of the lands upon the Supreme Court has become dormant in the executions issued upon the junior judg-respect to one from the Common Pleas, the ments only, so as not to interfere with the Supreme Court may, by its power over the rights of those whose property is not affected by the lien of the junior judgments. But the order in which the several parcels of land are described in the sheriff's deed, is not evidence that they were actually sold in that order by the sheriff. This part of the deed, therefore, 2 Hill, 364. does not show that the lien of the first execu- 318. Docketing judgment. Though the tion was satisfied before the sale so as to ren-judgment should be docketed before execuder void that part of the deed by which it tion is issued, where the execution is sent to appears that they were sold. Ct. of Errors, the sheriff at the same time that the tran1833, Jackson v. Robert, 11 Wend., 422. script is sent to the clerk, but is received 312. A sheriff, having a number of execu- by him before the judgment is docketed, the tions, with liens of different dates, must apply execution takes priority from the time of the the bid on the first parcel sold, in satisfaction docketing. Supreme Ct., Sp. T., 1852, Stouof the oldest lien. Supreme Ct., 1845, Bar-tenburgh v. Vandenburgh, 7 How. Pr., 229. ker v. Gates, 1 How. Pr., 77.

319. Partners. An execution against all

313. Several officers. If, after execution the members of the partnership takes precedelivered to the sheriff, but before levy, a constable levy and sell, under a justice's execation, the purchaser will hold against the sheriff. Supreme Ct., 1825, Marsh v. Lawrence, 4 Cow., 461.

314. Where a constable, having notice that the sheriff had received an execution, and was forbidden to interfere, nevertheless levied an attachment before levy of the execution, Held, that the execution must take preference. Supreme Ct., 1825, Wells v. Marshall, 4 Cow., 411.

dence of a prior execution against an individual member. Supreme Ct., 1828, Crane v. French, 1 Wend., 811; 1829, Dunham v. Murdock, 2 Id., 553; S. P., 1819, Matter of Smith, 16 Johns., 102; and see Scrugham v. Carter, 12 Wend., 131.

320. If after levy on the execution against an individual member, the sheriff receives an execution against the firm, he should sell on the latter; and if there is no surplus, may return the former nulla bona. Supreme Ct., 1829, Dunham v. Murdock, 2 Wend., 553.

315. Where a deputy levied, and then, by 321. But where the execution against the consent of the plaintiff in the execution, firm comes to the sheriff's hands so short a allowed a delay, and subsequently the under-time before the sale that the sale is had upon sheriff levied on and sold the same property the individual execution alone, the proceeds under a junior execution, a motion to compel cannot be diverted to the execution against the the application of the proceeds to the former firm. Supreme Ct., 1840, Fenton v. Folger, execution was denied, leaving plaintiff to his 21 Wend., 676. action against the sheriff. Supreme Ct., 1846, Barstow v. Thorne, 2 How. Pr., 64.

322. Maker and indorsers. The maker of a note which was protested, confessed a judg

Against Property ;-Sale.

ment in favor of the indorser for his security, be sold at a future day, in case the execution and afterwards the holders, who had previ- should not be paid; and it was paid,—Held, ously sued the maker, recovered judgment that this was merely a waiver of the claim of against him, and executions on both judgments exemption, and that the sheriff, in selling after were in the hands of the sheriff, though the the payment, was a trespasser, ab initio. Suexecution on the judgment in favor of the preme Ct., 1852, Carnrick v. Myers, 14 Barb., 9. indorser was first delivered. The court, on motion of the holders of the note, plaintiffs in the second suit, ordered the sheriff, out of moneys arising from a sale of the defendant's property, first to satisfy the other execution. Supreme Ct., 1821, Bank of Auburn v. Throop, 18 Johns., 505.

323. A third person, who has obtained possession of the goods subsequent to the delivery of the first execution, but prior to the second, cannot object that the sheriff applied the proceeds to the second instead of the first execution. Supreme Ct., 1820, Beals v. Allen, 18 Johns., 363.

324. Alteration. After levy, the plaintiff corrected a variance in the execution, and the defendant subsequently consented to the correction,-Held, that though there were subsequent executions in the sheriff's hands, the alteration did not affect the priority. Supreme Ct., 1824, Oakley v. Becker, 2 Cow., 454. Compare cases cited in ALTERATION OF INSTRUMENTS.

As to the principles on which priority between Creditors is in general regulated, and assets and securities are marshalled, see DEBTOR AND Creditor.

7. Sale.

325. Paid judgment. A title cannot be acquired under an execution issued upon a judgment that had been paid, and the payment may be proven by parol. So held, as between the parties. Supreme Ct., 1824, Jackson v. Cadwell, 1 Cow., 622.

328. Sale to collect fees. The sheriff has no right to sell, for the purpose of collecting his fees, after due notice of the settlement and discharge of the judgment. Supreme Ct., 1830, Jackson v. Anderson, 4 Wend., 474; Sp. T., 1853, Bank of Whitehall v. Weed, 8 How. Pr., 104; Ct. of Appeals, 1856, Craft v. Merrill, 14 N. Y. (4 Kern.), 456.

329. He has no interest in the judgment which will authorize him to interfere with any settlement by the parties; and his sale after notice of settlement is void. Supreme Ct., 1830, Jackson v. Anderson, 4 Wend., 474.

330. The fact that after the settlement the defendant consented that the premises might be bid off by A., does not render valid a sale to B. Ib.

331. After tender of the amount of execution and fees, and refusal, a sale to one with notice is void, and may be set aside. Chancery, 1816, Mason v. Sudam, 2 Johns. Ch., 172.

332. Delay. A delay in selling property levied upon under an execution, does not render the sale void in regard to an execution issued subsequent to the sale. Supreme Ct., 1817, Linnendoll v. Doe, 14 Johns., 222.

333. Notice of sale. Personal property not to be sold but on six days' notice. 2 Rev. Stat., 366, § 21.

334. Real property. Where a sheriff sold real property on execution, under a notice published in a newspaper, which, although it received six separate insertions, once in each week for six successive weeks, was first published only thirty-nine days previous to the day of sale, instead of six weeks, as required by statute. [2 Rev. Stat., 368, § 34.] Held, that no title passed. The statute is imperative, and the publication must commence six full

326. When a judgment is satisfied, there is no longer any power to sell. Where the purchaser knew that the judgment was satisfied, and the defendant was present at the sale, and made no objection to it,-Held, that the sher-weeks previous to the day of sale. Supreme iff's deed to an assignee for value was inoperative as against a purchaser under another judgment. Supreme Ct., 1842, Wood v. Colvin, 2 Hill, 566.

Ct., 1855, Olcott v. Robinson, 20 Barb., 148. 335. Extra. Publication in "an extra,"Held, not publication in a newspaper. Ib. 336. If the sheriff advertise on one exe327. The defendant objected that the prop-cution only, he can sell upon that only, but erty set up for sale was exempt; and the sale the whole bid should be stated in the certifiwas postponed; and an arrangement was cate. Supreme Ct., 1824, Mascraft v. Van Antmade by which he turned out the property to werp, 3 Cow., 334.

Against Property;-Sale.

337. Expense of continuing advertise- is present, and part absent from the place of ment. When defendant has a stay of execu- sale, is sold under an execution, the sale is tion until the decision of a non-enumerated valid as to the property present. Supreme Ct., motion, and the motion is denied, he must pay 1817, Linnendoll v. Doe, 14 Johns., 222. for the continuance of the sheriff's advertisement meantime; but not where the stay is to enable him to move for a new trial on a case made. Supreme Ct., 1836, Smith v. Martin, 18 Wend., 590.

fraud, or abuse of his discretion. Supreme Ct., 1810, Tinkom v. Purdy, 5 Johns., 345; S. P., 1823, McDonald v. Neilson, 2 Cow., 139. 340. The sheriff is not bound by the instructions of the party to proceed in a way that is unnecessarily oppressive to the debtor. He should exercise a proper discretion, and ought to allow an adjournment of a sale, when otherwise there must be a great sacrifice of the debtor's property, if he can do so without loss to himself. Ct. of Errors, 1823, McDon-erty in them. [1 Johns. Cas., 287.] Supreme