Willoughby v. Dewey

Mr. Justice Sheldon delivered the opinion of the Court: It was error to exclude from the jury the executions and the plaintiffs testimony. The executions were issued on the 26th day of December, 1868. They were levied by the constable on the 12 acres of wheat in question, on the 4th day of March, 1869, which was before their return day. There not being time in which to give 10 days notice, in order to sell in the lifetime of the executions, the constable, under the mistaken idea that he had no authority to go on and complete the sale after the return day of the executions, returned them to the justice, and applied for alias executions, in order to sell the property, and the justice issued two alias executions in the ordinary form, reciting that they were issued to enable the constable to sell the property levied upon. The' constable made return on the alias executions that he levied them on the property and sold it on the 15th day of March, 1869, to the defendant. After the time when an execution is to be returned, it can not be executed by taking the property of the debtor. But if the officer has begun to execute the execution by a levy, at any time before it is returnable, he may complete the service after it is returnable, and this, whether he retains the writ or has returned it—and, in the latter event, no alias execution or writ of venditioni exponas is necessary. The latter confers upon the officer no new authority; it only compels him to do that which it was his duty to do. It is the duty of the officer, when once he has made the levy, no matter what becomes of the execution, to go on with the sale, and bring the money into court. Phillips et al. v. Dana, 3 Scam. 551 ; Prescott v. Wright, 6 Mass. 20. The alias executions, then, were without any legal effect. The original executions having been levied in their lifetime, there was power to sell under them. The execution of the writ is an entire thing. The completion of the service shall have relation to the time when it commenced. The judgment of the court below must be reversed and the cause remanded. Judgment reversed.