M'Clelland v. Slingluff

The opinion of the Court was delivered by Rogers, J. On the return to the alias fieri facias, the plaintiff in that execution, Slingluff, was entitled to the money. For although there was a prior execution in the hands of the sheriff, no levy had been made upon it, but it was made, as appears in the return, on the second execution on which the property was sold. The levy was attached to the execution, and so returned; so that the application of the money to the first execution was a mispayment, which rendered the sheriff liable in this action. As between different plaintiffs, if two writs oí fieri facias are delivered to the sheriff on the same, or different days, the sheriff ought to execute that first which was first delivered to him. If, however, the sheriff, either by mistake or design, levy goods in execution by virtue of the writ last delivered, and make sale of them, the property in the goods is transferred by the sale, and the party cannot seize them by virtue of the writ first delivered, but he may have his remedy against the sheriff. Watson on Sheriff. 127. The money made, when this is the case, belongs to the second execution creditor, on whose writ the goods were levied and sold, leaving the first execution creditor to an action against the sheriff for redress. At the time, therefore, that this suit was commenced, [136] so far as it appeared on the sheriff's return, the right of action was complete. But to avoid the effect of the return, the sheriff offered to show by parol, that in fact a levy was made on the fieri facias first delivered to him. But this, we are of opinion, should not be permitted, because the evidence offered is, in substance, a contradiction, or, at any rate, is an avoidance of the legal effect of his return on the alias fieri facias; for on that writ the levy and sale were made ; for to that writ he has attached the levy as part of his return. He offers a páper purporting to be a levy on the same goods, which, it is conceded was not and never had been attached to the writ, nor returned with it. In connection, he offers parol proof that it was a levy made by the deputy sheriff on the same day it bears date, on the property therein mentioned, on the M’Sherry execution, No. 23, and that it was the same property sold by the sheriff on the alias fieri facias and embraced in the other levy. But in addition to the reason already given, we think such testimony would be dangerous to the rights of creditors, as it would enable the sheriff, after he is fixed for the money, to rid himself of the effects of his return by testimony which, in its nature, is very uncertain and unsatisfactory. But we are further of the opinion, the court was right in excluding the evidence, because, if admitted, it would not have varied the result, as is shown in Barnes and others v. Billington, (1 W. C. C. R. 38). The sheriff must always designate the property seized under the execution, either in the body of his return, or by reference to a schedule accompanying it. The reason is obvious; the execution creating a lien, it should be known to others who may take posterior executions, or who may deal with the debtor, what property is affected by the lien, and what is not. Here the plaintiff had no notice whatever of the first levy, for the first he heard of it was at the trial, when the sheriff offered to give it in evidence, admitting, at the same time, that it had not been attached to the writ, nor returned with it, but that it had been brought into court by him during the trial, having remained from the date in his possession, without having been filed of record in any way. It was therefore a private paper merely, with nothing to connect it (except the parol proof of the deputy sheriff) with the official proceedings of the sheriff. The sheriff may attach,the levy to each and every execution, or he may refer to the levy attached to another execution. But when neither course is pursued, and there is nothing attached to the execution which indicates that a levy has been made on the execution, it would peril the just rights of creditors to permit the omission of it to be supplied by the oath of the deputy sheriff, or by any other parol proof. It is necessary that we should require that there should be something on the execution itself, or accompanying it, to show a levy, and the goods on which the levy was made, to prevent subsequent execution creditors and others deal [137] ing with the debtor being deceived and defrauded. The evidence was therefore properly ruled out on two grounds, because it contradicts the legal effect of the return on the alias fieri facias, and because it would lead to bad consequences to permit a sheriff) after he is fixed for thé money, and suit brought against him, to shield himself from the consequences of his own act by testimony of which the plaintiff neither' has nor could have any knowledge. It would introduce carelessness on the part of sheriffs’ officers, of little service to themselves and most pernicious to suitors. Judgment affirmed.