Cairns & Lord v. Smith

8 Johns. 337

• Court: New York Supreme Court
• Decided: August 15, 1811
• Status: Published

Opinion

Per Curiam.

It is irregular to issue a second execution until the first is returned. (Gilbert on Executions, 24. 1 Salk. 318. 2 Tidd's K. B. Prac. 934.) The court ought to know what proceedings have been had upon the first execution before they award another. This rule is necessary to prevent abuse and oppression, though we do not mean to apply the rule to a case in which an execution may have issued unadvisedly, and the party withdraws it, before any thing is done. The rule is more necessary to be observed, when it appears that a sale has actually been had under the first execution. (2 Tidd, 912.) In this case there was a sale, and a purchaser claims the benefit of such sale. Whether the sale was bona fide and valid, or fraudulent and void, is a question which cannot be tried upon the present motion; nor can it be permitted to the attorney who issued the execution to determine that point for himself. By recalling and suppressing the first execution, after a sale under it, he deprives the purchaser of his right, if any right was legally acquired under the first sale. An execution is said to be an entire thing, and when once begun must be completed, and perhaps the executors of the late sheriff are the proper persons to return the first execution, so that the parties may respectively be enabled to take such steps thereon as their rights may require. If a sheriff dies after having taken goods into his possession, his executors must complete the sale. (1 Black. Rep. 69.) But without giving any opinion as to the course and ettect ox the proceedings und-er the first execution, it is sufficient, in the present case, to declare, that the second execution was irregular, and that the motion to set it aside ought to be granted with costs.

Motion granted,