Williams v. Rogers

5 Johns. 163 | N.Y. Sup. Ct. | 1809

Per Curiam.

The motion on the part of the plaintiff, Daniel Ross, to amend the return to the execution, must be granted, on payment of the costs of the motion. The case of Hunt v, Kendrick, (2 Bl. Rep. 836.) is in point. The inaccuracy in the return does not render the process . void, but voidable only.' (2 Burr. 1187.) The case of Drake v. Miller, (Coleman's Cases, 85.) was contrary to the established rule on this subject. It construed the statute with unnecessary severity, and certainly ought not to be extended to a case which is not precisely within the terms of it.

The other motion, on the part of Coates, the assignee of Williams, that the overplus moneys in the hands of the sheriff, be paid to him, and the cross motion on the part of Ross to have the overplus moneys paid to him, are both denied, without costs. The court do not think proper, upon the facts presented, to interfere either way. It is now the practice in the English courts, not to grant such rules upon the sheriff. (Fieldhouse v. Croft, 4 East’s Rep. 510. Knight v. Criddle, 9 East’s Rep. 48. Willows v. Ball, 5 Bos. & Pull. 376.) But the court do not say that they will never interfere when the equity of the case can be accurately discerned. If the claims of Coates were out of the question, it would be unreasonable to require the sheriff to pay the overplus moneys into the hands of the defendant, when he held in his possession a subsequent execution against the property of the defendant, and had no means of satisfying it, but out of those very moneys. In such a case, the court would probably be disposed to adopt the reasoning of the supreme court of the United States, in the case of Turner v. Fendal, (1 Cranch, 117.) that the money of the defendant may be levied on. In the present case, however, part, and probably by far the greatest part, of the overplus moneys in question, was raised out of lands purchased by Coates, before the entry of the second judgment, and part was raised out of lands bound by the second judgment. The proportion is not stated; and it is only stated, that the greater part of the land sold was purchased by Coates before the second judgment, and only a small proportion of the lands was bound by the second judgment. As the precise extent of the equitable rights of the claimant to the overplus moneys cannot be ascertained, vthe court decline to make any rule tift the subject. The court of chancery has more means, and can procure more light in adjusting the equity df thb interfering claims.

First motion granted, and the others denied.