Evans v. Parker
New York Supreme Court
This was a motion to set aside as false a sheriff’s return of nulla bona upon a fi. fa. The sheriff had made a levy, but becoming satified that the defendant’s property was insufficient, over and above previous liens, to satisfy the execution or any part of it, he consulted with the plaintiff’s attorney, and returned the fi. fa. nulla bona, &c.
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This was a motion to set aside as false a sheriff’s return of nulla bona upon a fi. fa. The sheriff had made a levy, but becoming satified that the defendant’s property was insufficient, over and above previous liens, to satisfy the execution or any part of it, he consulted with the plaintiff’s attorney, and returned the fi. fa. nulla bona, &c. Upon which the plaintiff filed a creditor’s bill in the court of chancery, obtained an injunction, and was proceeding to the appointment of a receiver. The affidavits produced on the motion to set aside as false the sheriff’s return were contradictory…
1Opinion of the Court
By the Court, Cowen, J.
I told the parties on this motion being mentioned, and the papers being glanced at, that I was very sure I could not give any relief in the course now taken, even if it were in fact due. It certainly is not necessary to deny that on a plain, uncontested case of collusion, we might interfere in a summary way, though I hope we have no reason to anticipate such a case. Even then it is quite obvious how much more ample would be the remedy by action, which might also be pur* sued pari passu with an indictment. As a general rule, the *623sheriff must exercise his discretion and…
2Cases cited2 opinions
- Stoors v. KelseyNew York Court of Chancery · 1831
- Champenois v. WhiteNew York Supreme Court · 1828
3Cited by10 opinions
- Green v. BurkeNew York Supreme Court · 1840
- Forbes v. . WallerNew York Court of Appeals · 1862
- Neilson v. NeilsonNew York Supreme Court · 1849
- Wilson v. WrightNew York Supreme Court · 1854
- Forbes v. WallerNew York Court of Appeals · 1862
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