Read's Administrator v. Randel

3 Del. 36

• Court: Superior Court of Delaware
• Decided: July 5, 1839
• Status: Published

Opinion

Per Curiam:

Bayard, Chief Justice:

The act of assembly prohibits the sale of goods taken in execution until the expiration of thirty days after the levy thereon, and notice thereof to the defendant; to the end that any person concerned may relieve the same by paying the money. This is one object as expressed in the act; and there is another, the saving of costs. “If an execution be levied on goods or chattels and settled without a sale after the expiration of thirty days from the levy and notice as aforesaid, the sheriff shall be entitled to dollarage; but if settled before the expiration of said thirty days, dollarage' shall not be allowed.” (Digest 241.) The object of the act can only be answered by reference to the notice, and not the levy; but if actual notice be required, then a defendant by going out of the State, could prevent a sale; for the same time is required, after notice, to legalize a sale, as to entitle the sheriff to his dollarage. It is clear then, that constructive notice would be sufficient, and this ought to be the best notice the nature of the case will allow. The levy alone cannot be construed a sufficient notice, for the act expressly requires notice in addition to the levy. Notice left at the place of abode with any one in charge of the house; or affixed to the door, if no one was in charge, would have been in this case sufficient.

Wales, for defendant. Gray, for the sheriff.

Dollarage disallowed.