Godfrey v. Gibbons

22 Wend. 569

• Court: New York Supreme Court
• Decided: March 15, 1840
• Status: Published

Opinion

By the Court,

Cowen, J.

We have nothing to do with the state of accounts between the defendants. The plaintiff, not the defendants, or any. of them, had a perfect right to direct a levy on the joiriWBr several property of the deSndánts or any of them, thegjudgment being against all. A *alid levy on the boat would have been, it is true, prima facie a satisfaction of the debt, especially if Wiswall’s interest in the boat had been of sufficient value to satisfy the fi. fa. But the levy was^void ; at least it might be so regarded by the plaintiff; for the sheriff was bound by the direction of the attorney to levy on the property of the Gibbonses only. Fhave just now had occasion to consider the extent of the attorney’s' power over process, in Walters v. Sykes; and I find that the sheriff may, by his direction, be restrained and limited as a special agent to any act which is within his general authority under the writ; and the case now under consideration shews very forcibly that this should be so. By colluding with the Gibbonses to evade the plaintiff’s direction, the sheriff was in the way not only of enlarging the delay of collection, which had already been considerable ; but of drawing the plaintiff into a litigation coneerning a disputed title to Wiswall’s property in the boat. 1 think the plaintiff had a right to consider the fi. fa. as totally unexecuted ; and after the interference of the Gibbonses in this matter, they are the last persons who should be received to object that the plaintiff has been irregular in issuing a second fi. fa. without returning the first.

The motion is denied with costs.