Tolson v. Elwes

Execution sued out in the name of W. indorsed for benefit of E—held ■ that E. cannot maintain a motion in his own name against the sheriff for amount levied on the execution or for his default in service and return of the writ.

:.A' writ of fieri facias,'sueA out of the circuit court of Stafford, dated the 23d October 1823, and returnable the second Monday in January following, in the name of Wallack, but indorsed “ for the benefit of Elwes,” against Simms and Flournoy, for debt, interest and costs, for which Wallack had recovered judgment against them, was delivered to Beatty deputy of Tolson late sheriff of Stafford, who made the following return upon it—“ By virtue of this execution, I levied, and advertised according to law, the following property, to wit, Stock of horses, cows &tc. household furniture, and plantation utensils; the sale of which was prevented for want of bidders. (Signed) B. Beatty deputy for B. Tolson sheriff &c.” Upon this, a writ of venditioni exponas, dated the 18th April 1825, and returnable the'first day of May term following, was sued out, and delivered to the same deputy. This process also ran in the name .of Wallack, but was indorsed “ for the benefit of Elwes.” The deputy made the following return upon it—“ Levied this execution, together with two others which had previously come to hand, on the following property, subject to sundry taxes and levies due to me, to wit, One bureau he.” (enumerating divers articles of household furniture, and one cow and nine hogs); “ all of which I sold according to law, to the highest bidder, the 16th May 1825, for 130 dollars 92 cents; which sum was applied to the discharge of two executions which came to hand previously to this, namely, one in favor of the representatives of John Bronaugh, and the other in favor of Ephraim Brent; and the balance of the amount of sales is retained to satisfy in part taxes and levies due me. This execution was also levied on the following property, which could not be found on the day of sale of the above-mentioned property, to wit, Two horses he.” (enumerating a few cattle and hogs, and some farming utensils); “ which, when sold, shall he applied in part thereof. I had also levied on the following, to aid in discharge of this execution, to wit, One round tea table he.” (enumerating sundry articles of furniture and plate, a few cattle, mules and sheep, and some farming utensils); “ which last mentioned property I am advised has been enjoined by Mr. Brent and others, as not being liable to the discharge of the debts of the said Simms, and which I cannot sell, unless I am indem-. nified in the sale thereof. (Signed) R. Beatty deputy for B. Tolson sheriff &c.” Hereupon, Elwes, for whose benefit these two writs had been, sued out, gave a notice, in his own name, to Mr. Tolson the sheriff, that he would move the circuit court for judgment against him, for the full amount of the debt, interest and costs, mentioned in the venditioni exponas, with 15 per cent, per ann. interest thereon from the return day thereof until paid, according to the provisions of the statute, 1 Rev. Code, ch. 134. § 48. p. 542.* And upon the motion made by Elwes pursuant to this notice, the circuit court . gave him judgment, for 180 dollars 83 cents (the amount due on the venditioni exponas) with 15 per cent, per ann. interest thereon from the return day of the writ, and the costs of the motion. From which judgment Tolson appealed to this court.