Dayton v. Fry

Walker, J. Was the demurrer to defendant’s fifth plea properly overruled % By that plea it was averred, that plaintiff might not be admitted to say, that the property mentioned in the declaration is his, because he, together with Matthew J. Dayton, entered into a delivery bond to the sheriff for the return of the property to him. That bond is recited at large, in the plea. It recites, that an execution against Matthew J. Dayton had come to the hands of the sheriff, had been levied upon the property therein mentioned, belonging to the defendant in execution. This plea fails to aver, nor is it admitted in the bond, that any sum of money was due and unpaid, on the execution, at the time the levy was made. It is manifest, that it is only by virtue of an unsatisfied fi. fa., in full force, the sheriff could make a valid levy. Had this execution been satisfied, or had the levy been made after the return day, the defendant in execution could recover the property, and so could his security on his delivery bond if the property belonged to the security. It is only by virtue of an execution in full life, and unsatisfied, that the sheriff may levy and hold property of the defendant. When a party justifies what would otherwise be a trespass, by legal process, he must not only show that he acted under what purports to be a valid writ, when it was issued, but that it was in full force and conferred the power to perform the act, at the time he acted. To have shown a justification or an estoppel in this case, the plea should have averred that the writ was in full force, the money unpaid, and the levy made, and the bond taken in pursuance of its authority. The plea failing to aver that the writ was unsatisfied, and that it was in full force, when the levy was made and the bond was executed, the plea was defective, the judgment of the court below must be reversed, and the cause remanded. Judgment reversed.