Holmes v. Nuncaster

12 Johns. 395

• Court: New York Supreme Court
• Decided: October 15, 1815
• Status: Published

Opinion

Per Curiam.

What the objection was to the admission of the execution in evidence, does not appear. The execution was all that it was necessary for the constable to show in his de? fence, provided he.had a right to take money under it; he was not bound to show the judgment. It appears, from the plaintiif’s own. testimony, that the money was claimed to be held by {}le defendant under an execution against him ; so that the only ’ question is, whether the constable had a right to levy and hold the money under the execution, The' money came into his hands by delivery ,from the plaintiff himself, though for another purpose; so that no question arises as to the levy of the executian, Or how far an officer would be authorized to go in this respect; but, havirig the money in his hands,- there oán be no ' good reason assigned why it should not be applied to the satisfaction of the execution. Indeed, we have expressly decided, in Handy v. Dobbin,

*ihat money of bank bills may be taken in execution ; and on looking again at the cases, we find nothing to induce us to doubt of the soundness Of that decision. Lord Mansfield, in the casé of Armistead v. Philpot, (Doug. 231.) said that there were some old cases in which it had been held that the sheriff could not take money in execution, even though found in the defendants ■scrutoire, and that a quaint reas’on was giveh for it, viz., that money could not be sold. But it is evident that he did: not think this a sound reason, ánd the result of the motion in that case would seem pretty strongly to sanction the right of the officer to take money under an execution. This, however, has been otherwise ruled in the K.,B. in later cases, (4 East, 510.† 9 East, 48.‡) and carried so far, that the Cdutt would not allow the sheriff to apply surplus money raised . - , - . . ■ J J . On a salé o$ properly under an execution, to the satisfaction of . 1 .... . . . .. ' ^ , another execution in ms hands against the same defendant, although no other property was to be found. In the Case, however, of The King v. Webb, (2 Shower, 166.) it was ruled, that a sheriff may take ready money, under a levari facias ; and, in this respect, there is no difference between á levari'f acias and a, fieri facias; and, in Dalton’s Sheriff, 145., it is expressly laid down, that money may be taken under a fieri facias. The supreme court of the United States, in Turner v. Fendall, (1 Cranch, 117.) after examining all the cases, adopt the same doctrine, They say; they could perceive ■ no reason why an execution should not be levied on money ; the one given in the books, that money' could not be, sold, was .‘not a good one. The reason of a sale is, that money only Will satisfy an execution ; and if any thing else-, be taken,- it- must be turned into-money; but this can be no good reason for refusing to take the very article, to produce which is the sole object of the execution. We are of opinion that the judgment below-must be reversed.

Judgment reversed.

Ante, 220.

Fieldhouse v. Croft, et vide Francis v. Nash, Rep. temp. Hardw. 53.

Knight v. Criddle.