Slingerland v. Swart

13 Johns. 255 | N.Y. Sup. Ct. | 1816

Per Curiam.

It is not necessary, in this: casej to decide Whether Lawyer’s execution was fraudulent and void, so as to give priority to the plaintiff’s,.because no more is claimed of the sheriff than the avails of the property levied on-after the return-day of Lawyer’s execution; and there can be no possible ground upon which the recovery, -to this extent, can be resisted. It is, , certainly, a principle not to be questioned, that a sheriff cannot .levy an execution upon goods and chattels after the return-day is passed. The latest period which the law allows for the service of process, is the day on which it is returnable. (2 Caines' Rep. 244. 4 Johns. Rep. 456.) It is not pretended by the defendant, that he has paid over the money to Lawyer ; and, indeed, the return made by him, upon that execution, shows he has not paid it over. He, therefore, has not been misled, or in any way prejudiced, by the rule of January term, 1814. And, although the plaintiff might, under the rule of January term, 1815, have compelled the sheriff, by attachment, to pay over the money to him, this does not take away his remedy by action. Nor can there be any objection to the recovery of the interest, as found by the verdict, after the order of the court directing the sheriff to pay over the money to the plaintiff, and a demand made upon him for the same. He was. clearly in default, and ought to' be charged with interest on the money thus wrongfully withheld. The plaintiff is, accordingly, entitled to judgment for 534 dollars and 60 cents, as found by the jury.

Judgment for the plaintiff.