Devoe v. Elliot

2 Cai. Cas. 243, 1 Cole. & Cai. Cas. 396

• Court: New York Supreme Court
• Decided: November 15, 1804
• Status: Published

Opinion

1'er Curiam.

The only question arising in this case is, whether a sheriff' can, by virtue of a fieri facias, duly delivered to him before the return day, legally levy on, and sell, goods and chattels acquired by the defendant after the return day in the execution? We think he cannot.

(b) We take it to be a general principle that all process must be served before the return day. The utmost length the law allows for executing a writ is the day whereon it is returnable. When a sheriff has levied an execution in due time, he may complete the same by sale after the return day, but should he omit levying until that day was passed, the execution is dead. If these positions be correct, we cannot see how goods purchased by a defendant, after the return day in an execution is passed, can be taken and sold under such process. The only mode, we conceive, of getting at such property is, by procuring a return of tbe execution and issuing an alias. A contrary practice would be mis* ehievous and a fraud upon other creditors.

*The opinion of the court, therefore, is, that judgment of nonsuit be entered pursuant to the stipulation in the case.

Judgment of nonsuit

His authority expires with the writ. If he levy after the return day by order of the plaintiff, they are both trespassers. Vail v. Lewis & Livingston, 4 Johns. Rep. 450.