Doty v. Turner

Per Curiam. The question is, whether the first execution is to be deemed fraudulent, as against the second, in consequence of the directions given by the agent of the plaintiff to the sheriff. It was competent for the plaintiff to prove by the agent what those directions were, notwithstanding the return, for the recital on the subject in the return, was of extrinsic matter, not appertaining to a strict official return. The testimony given by Houghton does not, however, essentially vary from that stated by the defendant. The information given to the defendant upon delivery of the execution, was, that he need not remove the property to be levied on out of the possession of Pierce, nor need he take a receipt for it. This he said upon the supposition or belief, that the plaintiff did not wish to distress Pierce. There were no instructions to delay the proceedings after seizure, and the defendant only inferred a consent to the delay which took place. There was no agreement between the plaintiff and Pierce, that the execution should sleep in the sheriff’s hands; and it does not appear, from the case, what time elapsed between the delivery of the first and second execution. The case, therefore,-‘does not come 23 within the rule of the common law recognised in Whipple v. Foot. (2 Johns. Rep. 418.) If a long time had intervened between the one execution and the other, it would have been ground for the jury to have inferred the consent of the plaintiff to the delay, and might have established* the legal presumption of fraud. The direction to the jury was correct. The return states that the defendant has 263 dollars and 50 cents, made by virtue of the sale under both executions, which he is ready to deliver to the party entitled. This was evidence sufficient of the receipt of the moneys and the arrangement between the sheriff and the purchaser shows that the former was willing to consider that arrangement as equivalent to the payment of the money. The return authorized the jury to infer the actual receipt of the money, and as the plaintiff in the first execution had not lost his preference, the motion on the part of the defendant to set aside the verdict is denied. Motion denied.