Every v. Edgerton
New York Supreme Court
This was an action of assumpsit, tried at the Delaware circuit in September, 1829, before the Hon. James Emott, then one of the circuit judges. The suit was against the defendant, as sheriff of the county of Delaware.
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This was an action of assumpsit, tried at the Delaware circuit in September, 1829, before the Hon. James Emott, then one of the circuit judges. The suit was against the defendant, as sheriff of the county of Delaware. The declaration contained counts for money had and received, lent and advanced, and paid, laid out and expended; and a fourth count, which was special, for money had and received by the defendant, on an execution in favor of the plaintiff, against one John Vermilyea. The defendant pleaded the general issue. On the trial it appeared that on the 26th February, 1829, a jd. fa. was…
1Opinion of the Court
By the Court,
Sutherland, J.
The plaintiff contends that the sale under Dimmick’s execution, producing sufficient to satisfy both that and the plaintiff’s execution, the defendant is *261liable for money had and received to his use, whether he actually received the same, or accepted the receipt of Yermilyea in lieu of it; that the bid of Dean, the purchaser at the sale, followed up by a certificate of sale, was money in the plaintiff’s hands, and he was bound to apply the surplus to the plaintiff’s execution, and not to pay it over to Yermilyea ; and that he cannot be permitted to say that the…
2Cases cited1 opinion
- Floyd v. DayMassachusetts Supreme Judicial Court · 1807
3Cited by9 opinions
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- Brewster v. CropseyNew York Supreme Court · 1849
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