Fiddeman v. Biddle

1 Del. 500

• Court: Superior Court of Delaware
• Decided: July 1, 1835
• Status: Published

Opinion

By the Court. Clayton Chief Justice:

The motion to set aside this writ of venditioni exponas which has in it a fi. fa. for residue must prevail. In England where the levy is not to the amount of the debt the venditioni exponas may include a fi. fa. for the residue, but there the sheriff is answerable for the amount of the goods levied on at the value as returned by him. Here he is answerable for the goods, but not for the value at which they are appraised, and the amount for which the fi. fa. should go is not ascertained, nor can it be ascertained except by an actual sale. The English practice ought not therefore to be introduced here; nor should a fi. fa. for residue issue until there has been an actual sale of the goods. The practice therefore of issuing a venditioni exponas and inserting in it a fi. fa. for residue cannot be sanctioned by this court. No fi. fa. for residue should issue until it is ascertained by a sale what that residue is.

Rule made absolute.