Benjamin v. Smith
New York Supreme Court
This was an action on the case for a false return to an execution, alleged to have been made by the defendant as sheriff of the county of Chenango, tried at the Chenango circuit in October, 1831, before the Hon. Robeht Monell, one of the circuit judges.
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This was an action on the case for a false return to an execution, alleged to have been made by the defendant as sheriff of the county of Chenango, tried at the Chenango circuit in October, 1831, before the Hon. Robeht Monell, one of the circuit judges. On the 23d October, 1827, an execution in favor of the plaintiff against one Pliny Nichols, for $479,60, was delivered to a deputy of the defendant of the name of Humphrey, by virtue of which a levy was made on household furniture and other property of Nichols, which, on the 5th February, 1828» was sold by another deputy of the defendant of…
1Opinion of the Court
By the Court,
Sutiiekland, J.
The' action rests upon the allegation that the execution of Rathbone and Hunt had become dormant and lost its priority, and that the proceeds of the sale therefore belonged to the plaintiff, and should have been applied upon his execution.
The jury were correctly instructed by the judge that the execution of Rathbone and Hunt was fraudulent as against the plaintiff, if the delay upon it was occasioned by their interference or directions: that whether it was so occasioned or not was a question of fact for them to decide; and that if they should find that execution to…
2Cases cited1 opinion
- Benjamin v. SmithNew York Supreme Court · 1830
3Cited by5 opinions
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