State v. Records

5 Del. 146

• Court: Superior Court of Delaware
• Decided: July 5, 1849
• Status: Published

Opinion

Court.

The execution was put into the sheriff’s hands to be executed on the 3d of April, 1844, during the continuance of the first recognizance, and it was returnable on the first day of the term next following the date, viz: 8th of April, 1844. By indulgence of the court the sheriff has until the second day to make actual return, but it is his duty to return on the first day of the court, and the return must be regarded as made on that day; because after that day he has no authority to do any act under that writ, and the sureties in the recognizance taken subsequently, could not be liable for the previous neglect of duty. Nonsuit refused.

Saulsbury, for plaintiff. MoFee, Houston, Cullen and Bayard, for defendant.

The defence then proceeded to show that the money levied was applicable to prior executions, and offered in evidence sundry justice’s executions against John H. Ellegeod.

Mr. Saulsbury objected to the executions as evidence, unless the judgments were produced.

Mr. Cullen insisted.

The Court

required the production of the judgments. The plea is that the sheriff was not guilty, because the defendant had no goods but such as were covered by prior valid and binding executions.— The validity of these executions depends on the judgments, which may appear to have been satisfied, or reversed, or dead. These ought to be produced, as the foundation of the executions.

The defence produced the judgments. One of them was dated in 1839, and the levy remained undisposed of until 1844.

Mr. Saulsbury asked the court to charge that a levy in 1839, not disposed of until 1844, had lost its lien.

Bayard, contra.—The execution does not lose its preference, unless fraud be shown. A stay does not deprive an execution of its priority. [3 Harr. Rep. 484.] A stay of execution does not make it lose its lien, unless it is kept running for fraudulent purposes.

Verdict for defendant.