Comstock v. Stowell

¶1When the plaintiff’s sureties failed to justify, the matter was adjusted between the plaintiff and the deputy Hitchcock, from whose custody the property had been taken by virtue of the writ of replevin. The plaintiff abandoned and discontinued the suit, paid the costs and surrendered the property to the deputy ; and the deputy agreed to receive it. The sheriff refused to interfere in the matter in any way, leaving all to the deputy. Neither the sheriff nor the deputy is here for the purpose of making this motion; and I am at a loss to see what right the execution creditors have to make it. But what is quite decisive, all of the executions have either been satisfied or returned nulla bona. The sheriff no longer has any right to a return of the property; and, consequently, he has no right to a judgment for the value. If the creditors have been injured, of which, however, there is no evidence, their remedy is against the sheriff. The proof is, that the bank execution, as well as the others, was returned nulla bona ; but if that be a mistake, I do not see how it could change the result. That execution was never levied upon the boat, and there is nothing to show that the bank was willing to take the hazard of selling the boat as the property of Peter Comstock. On the contrary, Mr. Simmons, the attorney, said the bank did not intend to proceed against the boat. I see no foundation for the motion. Motion denied with costs.