Gray v. Griswold

T. R. Strong, Justice.. The effect of granting this motion would be to charge the defendant with the interest on the plaintiffs’ judgment, after the sheriff had collected from his property sufficient to pay it, during .the period the money was stayed in the sheriff’s hands. Whatever should be taken to pay the interest would otherwise apply upon the second execution, and to that extent relieve the defendant from liability. No good reason is perceived why this loss should be imposed upon the defendant; on the contrary it appears to me it would be most unjust and oppressive. He did not procure the stay and is not responsible for it; he ought not, therefore, to suffer from it (see Gillespie vs. The Mayor of New York, 3 Edward’s Chan. Rep. 512; Stevens vs. Barringer, 13 Wend. 639, and cases cited). But the true view of this case, I apprehend, is that when the sheriff had realized a sufficient sum to pay the plaintiffs’ execution, and which was applicable to its payment, the execution was in law satisfied. The office of the attachment and execution was performed, and their functions there ceased. Any surplus in the hands of the sheriff, the law at once applied on the second execution, and satisfied it to that extent. No debt then remained in favor of the plaintiffs against the defendant for interest to accrue upon, and there was no money belonging to the defendant in the hands of the sheriff (Code, §237). In Lawrence vs. Murray (3 Paige, 400), the late chancellor said, “whenthe creditor seeks to enforce payment of his debt through the medium of the officers of courts, as soon as any part of the debt is collected under the order or process of the court, it is a payment pro tanto, [46] and interest can not afterwards be collected upon the amount thus received by the officer of the court.” Of course if the whole debt is collected it is wholly paid. If the position of the plaintiffs upon this motion is sound, upon the same principle, if there had been no surplus they might have been permitted to proceed with their execution and collect oí the defendant the amount of their interest. Clearly that would not be tolerated in a case like the present. As between the plaintiffs and the second attaching creditor, the former have no superior equity. They can not with any reason call upon him to relinquish any part of the surplus to which he has a legal right. The motion is denied.