Colton v. Camp

By the Court,

Sutherland, J.

If the letter from C.olt to Pratl, the deputy sheriff, of the 25th August, 1826, authorized him to relinquish the levy made by him upon the goods iu question, then that relinquishment was valid and efficacious, although the judgment and execution may, previously to the date of the letter, have been assigned by Colt and Bagley to McGee. Notice of such assignment had'not been given to the deputy sheriff or to the present plaintiffs. The sheriff was bound to obey the instructions of the plaintiffs in the judgment and execution, until he received notice that they had parted with their interest in the same.

The material question, then, appears to me, to be, whether the deputy sheriff was authorized to relinquish the lien acquired by his levy 1 for if he was not, I should be very clearly of the opinion that the act was entirely nugatory, and could pot, in any manner, affect or prejudice the rights of the plaintiffs in the execution, or of their assignee; that the lien still remained, notwithstanding the declaration of the deputy sheriff that he relinquished it; and that the sheriff or the deputy would be justified in subsequently enforcing the execution against the same property. A sheriff cannot discharge an execution without payment. If he returns the. execution satisfied upon receiving the defendant’s note instead of money, it is no satisfaction of the judgment or execution. (Bank of Orange v. Wakeman, 1 Cowen, 46, 7, note a, Mumford v. Armstrong, 4 Cowen, 553.) The plaintiffs in this case acquired no right under the sheriff. The deputy having declared that he was authorized'to withdraw the execution and discharge the property on payment of his fees, they took an assignment of the property from the defendant in the execution, in payment of a pre-existing debt. They advanced no money upon the faith of the declaration of the deputy, nor was the execution returned satisfied, nor the condition or situation of the property in any respect changed, between the 29th of August, when the declaration of the deputy was made, and the 3ist, when he again took the property, or resumed his control over it; for it does not appear ip have been actually taken possession of, or received by the plaintiffs. If, then, the deputy found he had miscon* ' ceived the instructions of the plaintiffs in the execution, he appears to me to have done no act which precluded him from enforcing the execution. It cannot be pretended, that the payment of the sheriff’s fees was a consideration for the act of the deputy, which could render it obligatory, if it would not otherwise have been so. The plaintiffs knew the deputy sheriff had no right to discharge the execution without satisfaction, unless he had instructions so to do from the plaintiffs in the judgment; and in acting upon the faith of the declaration of the deputy that he had such instructions, they acted at their peril.. I am inclined to think, that the letter did not authorize him to discharge the execution. It informs him that an ar~ rangement had been made with the plaintiffs respecting the execution, and that Mr. Hugh McGee, or some person for him, would give him directions about it, so as either to have it taken out of his hands, or to have it returned; that he must see that the fees are paid, so that ihe plaintiffs in the execution need not have them to pay., The fair construction of this letter appears to me to be, that the plaintiffs had parted with their interest in the judgment to McGee, and that McGee would instruct the deputy what to do with the execution, and then it intimates what those instructions would probably be. But after the deputy was informed that his instructions were to come from McGee, it was absurd for him to suppose that Colt intended to direct or control his conduct in relation to the execution, holding a letter showing that he had no right to do sp. In this view of the case, the evidence offered by the defendant, that the judgment had actually been assigned to McGee, and that the instructions to the deputy under which he acted were known to the creditors who took the assignment of the property from the defendant m the execution, was material, and ought to have been received. As this case, however, is subject to the opinion of the court, instead of granting a new trial, judgment must be entered for, the defendant.

Judgment for defendant,