
    J. & B. Knower vs. Barnard and others. Strong vs. The same.
    A sheriff having levied upon goods in virtue of aj/t./a. infavor of K. and left them in the possession of the debtor, was directed by K. to delay proceedings until further notice. Some two months afterwards, a fi.fa. in favor of one S. against the same debtor was delivered to the sheriff; and he, on the same day, called upon K. and his attorney, who countermanded the previous order for delay and di reeled the sale to take place. Held, that the fi fa. in favor of K. was dormant as against S., notwithstanding the former, when he directed the sheriff to sell, had no knowledge of S.’s judgment, there being no evidence that his attorney was also ignorant.
    
      Held further, that inasmuch as the acts relied on to show K.’s execution dormant were those of K. himself, and not of the sheriff, the case was one where the court ought to interfere in behalf of S. upon motion, and not turn him over to an action. Otherwise, where the misconduct in reference to the first execution is charged against the sheriff, no actual interference of the creditor appearing. Semble.
    
    The plaintiffs in the first entitled cause resided in Albany, and on the 26th of May, 1842, they caused a ft. fa. to be issued and delivered to the sheriff of Washington county, where the defendants resided, with an endorsement thereon directing the collection of $228,53. On this fi. fa. the sheriff levied upon a quantity of personal property, leaving it in the possession of the defendant, and afterwards, on the 17th of June 1842, received a letter from the plaintiffs’ attorney as follows: “ You are hereby dirented not to levy on the execution <fcc. until further notice from us.” On the 18th of August following, a ft. fa. in the second cause was delivered to the same sheriff, endorsed with directions to levy and collect $817,75. The sheriff being in Albany on that day, called upon the plaintiffs in company with one of their attorneys, and they then directed the sheriff to proceed and sell.
    It was stated in the affidavit of J. Knower that the defendants were indebted to him and his co-plaintiff on demands not included in the judgment; that they agreed to delay the sale on their execution in consideration of the defendants’ promise to pay those demands by instalments; and that, in consequence of the non-fulfilment of such promise, the sheriff was directed to proceed. These statements and others were made in answer to an allegation in Strong’s affidavit expressing the belief that, un-' der the agreement to pay the debt not included in the judgment, the Knowers had received nearly or quite sufficient to satisfy their execution if applied thereon. J. Knower further deposed that he was induced to agree to the delay by the representations of the defendants that they were solvent; that he learned the contrary from the sheriff at the interview on the 18th of August; and that he thereupon countermanded the direction to delay the sale which had been previously given. He also stated that the judgment was due and unpaid ; and it appeared by the affidavits of each of the Knowers, that neither of them knew of Strong’s judgment at the time the sheriff was directed to proceed with the sale. The attorney who called upon the Knowers in company with the sheriff, deposed that he went for the purpose of consulting with his clients and receiving their directions in respect to the execution; but did not deny that he knew of the execution in favor of Strong at that time.
    All the defendants’ personal property was sold by the sheriff in October 1842, and brought between $600 and $700. The excess beyond the amount of the ft. fa. in favor of the Knowers was paid over to Strong, the residue being retained by the sheriff subject to" the direction of the court.
    
      
      I. Harris, for Strong,
    moved for a rule directing the sheriff to apply the amount remaining in his hands upon the execution in favor of Strong, on the ground that the ft. fa. in favor of the Knowers had lost its preference by reason of fraudulent delay. He cited Kimball v. Munger, (2 Hill, 364;) Storm v. Woods, (11 John. 110;) Kellogg v. Griffin, (17 id. 274;) Benjamin v. Smith, (4 Wend. 332;) Grah. Pr. 383, 2d ed.; Russell v. Gibbs, (5 Cowen, 392.)
    
      H. H. Martin, contra,
    said the cases cited were of second executions which came to the sheriff’s hands before the orders to delay on the first had expired or were countermanded.
   By the Court, Cowen, J.

The Knowers deny knowledge of Strong’s execution; but that they or their attorneys had not information or belief that it was in the sheriff’s hands, or soon to be there, is scarcely compatible with the fact that the day selected by them to order their execution forward was the very same day that the second execution was received by the sheriff. The question then is, whether a creditor may, after seizure, stay his execution under an arrangement with his debtor, till he finds another issued or on the point of issuing; and still save himself by directing the sheriff to proceed. The answer is by no means full and particular as to the nature of the agreement under which the delay took place; and far from being so as to the amount obtained from the defendants by way of instalment under pretence of the demands not in judgment, of which also a very lame account, or rather no account at all is given. There is scarcely any thing, therefore, to take from the execution the character of having been used not merely for the direct purpose of collecting the debt endorsed upon it, as it should have been, but over and above, for management of the defendants’ means inconsistent with the rights of other execution creditors.

Independently of such considerations, I cannot distinguish the case in principle from those cited on the argument. I collect from the letter of the atirrneys and other circumstances, that the sheriff had instructions not to sell on the Knower execution till directed by the plaintiffs; and there is no doubt, on the language and conduct of the parties, that the intent was to delay the sheriff until, by subsequent executions, the loss of the first should be brought into danger. This, then, is the case of Kellogg v. Griffin, (17 John. Rep. 274.) Not literally for there the sheriff was directed to guard against junior executions. Here, the plaintiffs chose to do it in person; but the effect is the same.

A more doubtful question may suggest itself on the expediency of interfering summarily. This was done in the late case, of Kimball v. Munger, (2 Hill, 364,) though I perceive on farther examination than I bestowed upon that case, that Patteson, J. in Barber v. Mitchell, (2 Dowl. Pr. Cas. 574,) thought the better way was to have a somewhat similar question decided by an action against the sheriff. There, however, the plaintiff in the first execution had not interfered with it at all; and the imputation of fraud was levelled against the sheriff and defendant. At least this was the main ground of the motion. In a case of doubt, a trial of some kind would be the better course; perhaps the only proper one. But it is difficult to see any reason for the creditor in the prior execution claiming this, where the motion rests upon his own interference. It gives him the additional advantage of .contradicting or explaining the mover’s case by his own affidavit. The sheriff being indifferent will withhold nothing; or, if material evidence will probably be cut off, the fact can be shown. In Barber v. Mitchell, which was in the practice court before Patteson, J. he said: “ The circumstances are such that I think the party has a right to have the question tried, if he thinks fit.” Again: The case here is not so clearly fraudulent on his [the sheriff’s] part, as to authorize me in interfering.” In Kimball v. Munger, which proceeded on the plaintiff’s delay, the case coming fully up to those which had pronounced such delay constructively fraudulent, we did interfere without waiting for a trial. The summary course, when warranted by the facts, also saves the sheriff from expense and trouble.

Now I understand the clear rule to be that, if the plaintiff will interfere and direct the sheriff not to sell, he takes away the force of his execution as to junior seizures. This was held in Storm v. Woods, (11 John, Rep. 110,) although the fairness of the debt for which the senior execution issued was not questioned, and the delay arose from motives of humanity. The judge pronounced the first execution fraudulent, and the plaintiff was nonsuited. There may be exceptions depending on the peculiar condition of the property; but no excuse is set up in answer to the present motion which can be admitted with safety to the general rights of execution creditors. Justice to them requires that goods which at the time may be sufficient to satisfy all, should not be left in such a situation that they may be consumed or eloigned. Beside, if the plaintiff do not mean to sell, why should he deliver the execution at all ? The suspicion arises that the object may be to delay others by the levy for a debt wholly or partially simulated, or to coerce the payment of some debt not yet in judgment, or with some other view collateral to the lawful purpose of the writ. At all events, the law and the sheriff are not left to take their course. It is not they, but the plaintiff who is acting by rhe sheriff whom he sees fit to instal as his private agent. The goods being no longer in the custody of the law, but rather in that of the plaintiff, there is no foundation for the lien and preference which the law can attach as a consequence of its own regular’ action only. The attempt to use process thus clearly rendered dormant by the party’s own act, against others who desire to go on in a legal course, is an abuse which, as it seems to me, forms a proper subject for summary interference.

In consequence of feeling some doubt whether I had not gone an inexpedient length in Kimball v. Munger, and whether questions of this character had not better be left to an action against the sheriff, I reserved the present case for conference with the other judges at the general term in May. My doubts arose mainly from not having seen the case of Barber v. Mitchell, when I decided Kimball v. Munger, and the fear that I did not then sufficiently consider the point. The motion, was afterwards still farther reserved for reflection. Barber v. Mitchell has again been examined; and we are satisfied that the entire question which the counsel of Strong wishes to submit, cannot perhaps be reached by an action against the sheriff. It was said by Patterson, J. in the case cited, that it was the appropriate remedy for trying the fraud of the sheriff; but that if the whole charge fell upon the plaintiff, the sheriff could not be made liable. To warrant an action against him, he must have been a party to the fraud. Now the sheriff may be and commonly is quite ignorant whether the delay be either actually or constructively a fraud upon other creditors, which seems to be the true question. It was agreed in Barber v. Mitchell, to be the only question; and Patteson, J. said that, where the charge pointed against the plaintiff, an issue must be directed. In saying so, he could only have intended a case where the matter is left in doubt by the affidavits, according to the well known rule that, if there be no serious question of fact upon a non-enumerated motion, the court disposes of the case on the affidavits, or other proofs appropriate to that kind of motion. I understand that, in the case before us, the stress of the enquiry is directed against the fraudulent delay of the plaintiffs in the prior execution ; and if we turn Strong over to an action, he may thus be entirely shut out from a trial of the main question. Could I see any distinction between this and the cases heretofore. decided by this court in respect to dormant executions, I would award an issue; but I cannot. I think the execution of the Knowers must be regarded as at least constructively fraudulent within those cases. Nor does the question come within the recent decisions of the court for the correction of errors requiring questions of fraud in certain cases to be submitted to a jury. Those are questions arising upon the statute of fraudulent assignments or mortgages.

On the whole, we think the motion must be granted.

Ordered accordingly.  