McKay v. Harrower. money in court at the return of it. (2 Tidd's Pr. 934.) And it seems that a venditioni exponas might be directed to the new sheriff where the old one had returned that he had taken goods which remained in his hands for want of buyers. (Id. Mildmay v. Smith, 2 Saund. R. 343, and notes.) But the more usual way of proceeding in such case was by writ of distringas to the new sheriff, commanding him to distrain the old one till he should sell the goods, &c. (Id.) There cannot be found among the common law writs, one which is perfectly adapted to the present case; for, while the writ of venditioni exponas might go to the new sheriff in a case where the sheriff who made the levy was out of office, yet it was always in a case where the old sheriff had all needful authority to sell, &c.; and where a distringas was awarded to the new sheriff it was in a case where the old one was supposed to be in default, and its office was to set him in motion, &c. (Tidd's App. ch. 41, § 67, p. 274, Caines' N. Y. ed. of 1808.) In the case before us the old sheriff, (the defendant,) has never had in his hands, or in any way been vested with any authority to sell, the goods in question. Although there is no express provision in our statutes for this particular case, I think it is fairly to be implied from § 237 of the code, in connection with the revised statutes, that the execution, in a case like the present, should be directed and delivered to the individual who was sheriff when the attachment was issued, and who attached the property, and that it should be directed to him as late sheriff, &c. By the section last referred to it is provided that in case judgment be entered for the plaintiff the sheriff shall satisfy the same out of the property attached by him, &c. The section then proceeds, in four subdivisions, to direct the manner in which the satisfaction is to be made. By the first, he is required to pay over moneys in his hands the proceeds of sales of perishable property, &c. and of collections of debts, &c. By the second he is directed, in case a balance remains due and an execution shall have been issued, to sell, under the execution, so much of the attached property, &c. as McKay v. Harrower. may be necessary &c., if enough for that purpose shall remain in his hands, &c. These provisions, it seems to me, contemplate a sale of the attached property, by the sheriff who took it under the attachment, and by no one else. The revised statutes provide particularly for the case of an outgoing and incoming sheriff. (2 R. S. 438, 9, §§ 67 to 74 inclusive.) The old sheriff shall deliver among other things to his successor, "all executions, attachments and final process, then in his hands, except such as the said former sheriff shall have executed, or shall have begun to execute, by the collection of money thereon, or by a levy on property in pursuance thereof." (§ 69, subd. 5.) There is no statute or other law, that I am aware of, authorizing or requiring an outgoing sheriff to deliver to his successor property taken by the former by virtue of any process whatever. And the law seems to contemplate that whatever official acts remain to be done or executed in relation to such property must be done and completed by the same person who took it-whose official powers for such purposes were intended to be preserved by § 71, on page 439 of the revised statutes, above referred to. If the foregoing views are correct, the plaintiff entirely failed in making out a cause of action against the defendant. The execution offered to L. A. Jones, who had been a deputy of the defendant while his term of office of sheriff continued, was directed generally "to the sheriff of the county of Steuben," and was in the common form of an execution against the property of the defendant generally, as upon an ordinary judgment in an action for money. In my opinion neither the defendant nor Jones his deputy was bound to receive it, or had any right to execute it. The defendant could not be placed in default in relation to the property seized by virtue of the attachment, until a proper execution was put in his hands for that purpose. He could not sell it until the proper execution was delivered to him. He was not bound to deliver the prop McKay v. Harrower. erty to the new sheriff to be sold on the execution delivered to him, and would not have been bound to deliver it to the new sheriff on any execution or process which could have been issued on the judgment against Minier. The offer of the plaintiff, at the trial, to prove that the deputy of the defendant was requested to attach the interest of Minier in the real estate occupied by him, was properly overruled. The attachment recited a debt due from Minier of $200.02, and the return shows a levy on personal property to the value of $466.50. That would seem to have been a reasonable amount, and to have gone beyond it would have been prima facie oppressive. Besides, the adequacy of the extent of the levy is to be ascertained by the result of the sale. (Ransom v. Halcott, 18 Barb. 56, and authorities there cited.) The plaintiff offered to prove upon the trial that the property attached by Jones, the defendant's deputy, was gone and was beyond his reach, and that the same had been taken away with his knowledge and consent; and that by the neglect of said Jones, the property was lost to the plaintiff and could not be applied in satisfaction of his claim. This evidence, on objection by the defendant's counsel, was rejected by the court, and the plaintiff's counsel excepted. The plaintiff was not in a condition to demand the production of the attached property. No execution had been directed and delivered to the defendant, nor any issued upon which the attached property could be sold. The plaintiff was ahead of his time in demanding the attached property before he had issued the proper execution upon which it could be sold in satisfaction.of the judgment; and had no more right to meddle with it than a stranger. The justice therefore properly overruled the offer. For the foregoing reasons we are of the opinion that the plaintiff was properly nonsuited, and that the rulings at the trial were all correct. New trial denied. [CAYUGA GENERAL TERM, June 7, 1858. Welles, Smith and Johnson, Justices.] WRIGHT US. J. GARLINGHOUSE. Where a bill of exchange was drawn by L. B. G. upon H. & H., and was also signed by J. G. as surety, and subsequently by the plaintiff as surety for J. G., and was accepted by the drawers, and paid by them at maturity, without funds; Held that the plaintiff and J. G. occupied the same relation, and were under the same liabilities to the acceptors, as L. B. G. the principal drawer, and were each liable to the acceptors for the amount of the draft; and the plaintiff having paid to the acceptors a certain amount to take up the draft, it was further held that he, as the surety of the defendant, had the right to call on him to refund what he had thus paid. Held also, that the fact that the plaintiff had put his name to the bill as surety for the defendant without the request or knowledge of the latter, could make no difference in respect to the defendant's liability to reimburse the plaintiff. THE HE complaint in this action contained two counts. The first count stated that on the 21st day of September, 1850, the defendant made a draft which the plaintiff signed as surety for him, of which the following is a copy: "Rochester, Sept. 21st, 1850. Two months after date please pay to the order of Ralph Lester, Esq. two thousand dollars for value received, and charge the same to the account of your obedient servant, L. B. GARLINGHOUSE. J. GARLINGHOUSE, surety. GEO. WRIGHT, surety for the above surety. To Hicks & Hathaway, Boston." And for value received and in the due course of business delivered the same to said Ralph Lester, who indorsed the same, and for value received ordered the moneys thereon to be paid to C. P. Bissell, cashier; that the said draft was duly accepted and paid to the holder thereof by the said Hicks & Hathaway, and that at the maturity of the same, the plaintiff paid the amount thereof to the said Hicks & Hathaway; that said draft was not drawn upon funds in the hands of said Hicks & Hathaway, but was accepted by them as a loan upon the credit of the same, and that by the payment of the same on Wright v. Garlinghouse. the part of the plaintiff as aforesaid, the defendant became liable to pay and refund the amount of said draft, principal and interest, of which he had notice. The second count stated that on the 20th of March, 1852, the plaintiff paid the sum of $2044.31, as the surety for the defendant and at his request and in and about his business, whereby the defendant became indebted to the plaintiff in the sum last mentioned. The complaint, after alleging the nonpayment of said sums of money, concluded with a demand of judgment for $2044.31, with interest from March 20, 1852, besides costs. The defendant's answer was a general denial of each and every allegation in the complaint. The action was tried at the Ontario circuit, in November, 1856, before Mr. Justice SMITH and a jury. The counsel for the plaintiff, in opening the case, stated that the action was brought by the plaintiff to recover of the defendant the amount paid upon a certain bill of exchange upon the following state of facts In the year 1850 Leman B. Garlinghouse was engaged in the purchase of wheat and the manufacture of flour, at Hopewell, which he consigned to the house of Hicks & Hathaway of Boston, for sale on commission, and was in the habit of drawing his drafts on Hicks & Hathaway in the course of their business. That on the 21st day of September, 1851, Leman B. Garlinghouse made his draft on Hicks & Hathaway, payable to the order of Ralph Lester, two months after date, for $2000, a copy of which draft was set forth in the complaint. That the defendant Joseph Garlinghouse signed the draft as surety, and afterwards, and before the same was negotiated, the plaintiff, without the knowledge or privity of the defendant, signed the draft as surety for the surety. That the drawer, L. B. Garlinghouse, took the draft to Mr. Lester and negotiated it, receiving the proceeds of the draft from Lester. The draft went forward to Hicks & Hathaway, was accepted by them, and at its maturity was paid by them. That at the time of the acceptance and payment of the draft, Hicks & Hathaway had no funds of Leman B. Garlinghouse in their |