Opinion
January Term, 1864
F. Kernan, for the appellant.
D.B. Prosser, for the respondent.
The sheriff has refused to obey the directions of the plaintiff, in reference to the execution in his hands, and has defended this action upon the theory that he was under no obligations to conform his action to such directions. In this he is clearly in error. The party in whose favor process issues, may give such instructions to the sheriff as will not only excuse him from his general duty, but bind him. Both the process and the law which convey authority under it, are for the benefit of the party in whose behalf it is issued, and it is a general rule that a man may dispense with an entire law which is intended for his aid or protection. It follows that he may qualify it, to a greater or less extent, according to his discretion. ( Walters v. Sykes, 22 Wend. 566.) In the present case this plaintiff, as soon as he became the owner of the judgment, became the real plaintiff therein, and in the execution issued to enforce the collection thereof. Both thereafter were to be employed for his benefit, and were under his control, and those charged with the execution of the process thereon were as much subject to his directions as if he had been the original plaintiff in the judgment. Almost the precise point arising here was presented in the case of Godfrey v. Gibbons (22 Wend. 569). The plaintiff in that case had a judgment against two persons by the name of Gibbons, and one Wiswall. He issued an execution thereon, directing the sheriff to levy the money of the defendants Gibbons; but the sheriff, acting under their advice, made a levy on the property of the defendant Wiswall only. The plaintiff then withdrew the first execution, and issued another, which was levied upon the property of the defendants Gibbons, according to the directions of the plaintiff. It was shown by affidavits that, as between the Gibbonses and the other defendants, those defendants ought to pay the debt. This depended on the state of the accounts between the defendants. The defendants Gibbons moved to set aside the last execution, and took the ground that the levy on the property of the defendant Wiswall, under the first execution, and which the plaintiff had released by its countermand, had satisfied the judgment. The supreme court denied the motion, and said they had nothing to do with the state of the accounts between the defendants. The plaintiff, not the defendants, or any of them, had a perfect right to direct a levy on the joint or several property of the defendants, or any of them, the judgment being against all. That the plaintiff was at liberty to disregard the levy made upon the property of Wiswall, for the sheriff was bound by the directions of the plaintiff's attorney to levy on the property of the Gibbonses only. Referring to the case of Walters v. Sykes ( supra), the court said the sheriff might, by the direction of the plaintiff's attorney, as a special agent, be restrained and limited to any act which is within his general authority under the writ. We therefore see that the execution is issued for the benefit of the plaintiff therein, or the owner thereof; that it is the duty of the sheriff to conform to his directions, in the execution of the process when within his general authority under the writ. That the plaintiff may direct the amount of the execution to be made from the joint or several property of the defendants therein, and in the judgment, or that of any of them. It follows that the judgment in this case, being against four defendants, and the execution therein against the four, it was competent for this plaintiff to direct the amount thereof to be levied on the property of any of them. That as he could direct the whole to be made out of the property of any of the defendants, it also follows that he could direct less than the whole to be made in like manner. Upon the defendant's theory, Ketchum could have been compelled to pay the whole judgment. Undoubtedly the plaintiff could have collected the whole judgment from his property. Upon the same principle, and for the same reason, the whole of the judgment could have been collected from the property of the defendants Clarke and Sharpe. If the whole could have been collected from them, it is difficult to see why two-thirds may not be. It was, therefore, clearly the duty of the sheriff to conform his action to the directions of the plaintiff, and collect the two-third part of the judgment out of and from the property of the defendants, Clarke and Sharpe, levied on by him; and as the referee has not found that such property was inadequate to make such amount, we must assume it was sufficient for that purpose. The plaintiff was, therefore, damnified to the extent of two-thirds of the amount of his judgment, by reason of the refusal of the defendant to comply with his directions, and the referee properly gave judgment for that amount.
The judgment should be affirmed.
MULLIN, J., was for a reversal. All the other judges being for affirmance, judgment affirmed.