#### Slingerland *against*Swart, *former Sheriff of the county of Schoharie.*

'Where, a sheriff has two executions against the same defendant* ahd having levied part of the amount óf the priorexecution, proceéds» after the .return-day of that, execution, to make another levy, he must apply the sum thus made* in . satisfaction of the junior execution; the latest ¿period which the law: allows for the Service of a writ, -thing the day on .which it is

If the plaintiff in the juniofv. execution, ob- . tain a rule, direeling the sheriff to pay over the money to ,• him, be 13 not bound to proceed by attach*' ment, but may maintain an action of assumpsit against the sheriff.

Ahd, after such rule of the court, and de-‘ mand made by the plaintiff to pay him themoney, the sheriff, being clearly ia default, is chargeable with interest from the time of demand.

THIS was an action of *assumpsit,*and . was tried at the *Schoharie*circuit, in *November,*1815.

The plaintiff gave in evidence exemplifications of two executions in the supreme court, and the return thereto. 1. A *fi. ffa.,*tested the 13th of *October,*1813, and directed to the sheriff Of *Schoharie,*against *Joseph Becker*and *Philip Serviss,*for four thousand dollars of debt, recovered by *SUngerland,*the plaintiff in this cause, and 14 dollars and 43 cents damages and costs ; the judgment was docketed on the 12th of *October, 1813,*and the execution wasreturnable on the. 15th of *January,*1814. By an endorsement on. the execution, it appeared that it was received in the sheriff’s office on the 4th of *January,*1814, who was directed to levy, debt to 1,948 dollars and 90 cents, plaintiff’s costs, 14 dollars and 43 cents ; and defendant’s costs, 3 dollars and 31 cents, with interest and fees. 2. *Afi.fa.,*tested the 13th of *October,*in the twenty-eighth year of our independence, directed to the sheriff of *Schoharie,*for 6,000 dollars debt, recovered by *Samuel Lawyer,*and 14 dollars and 62 cents damages and costs; the judgment was docketed on the 22d of *October,*1813 '; the execution was returnable on the first *Monday*of *January,*1814. This execution was received, in thé office of the sheriff oil the 19th of *November,*1813, and was endorsed to levy 3,000 dollars debt, 14 dollars and 62 cents plaintiff’s costs, and 3 dollars and 31 cents defendant’s- costs, with interest and fees. On this execution was endorsed a receipt, dated the 9th of *December,*1813, for 902 dollars and 46 cents ; and, also, another receipt, dated *January*22d, 1814, for 446 dollars and 87 cents. . 3. The return of the defendant to these two executions, which was as follows : *“*I do humbly certify and return, that the execution hereto annexed, in favour of *Samuel Lawyer,*was received by me, on the 19th of *November,*1813 ; I received direction from the plaintiff, at the same time, not to proceed until further orders from him. On the 3d day of January, 1814, (the return-day thereof,) I was directed by the plaintiff, and, likewise, did levy on certain goods belonging to *256the defendant, in the defendant’s store, which were, afterwards, soj.^ ^y me, for 446 'dollars and 87 cents, which sum is endorsed by the plaintiff on said execution* That I went on. that day to another store of the defendant’s, about four miles from the first store, with intent to make a further levy on said execution, but did not arrive' there until after midnight, and the door being locked I returned to my lodgings, with intefit, next morning, .to go there again to make, seizure. Next morning, hefere [ started to go to Said store, I received the. Other execution in favour *oí Douw B. Slingerland,*(the’plaintiff in this .cause,) hereto annexed. I then made the seizure of the goods in said store, and the sales thereof produced .508 dollars, which I have on hand réady to bring into' Court, Or to pay over as I shall be .directed ; not being advised how to pay over the same,' and humbly ask the aid and direction of the court in the premises,’’. Signed by *Daniel Douw,*under sheriff, for the defendant.

The defendant then gave in evidence a certified copy of a rulé granted by this court, on the 15th *of January,*1814, in the cause-of *Bicker*and *Serviss,.*atithe suit of *Slingerland,*by which proceédings on the execution in that cause, against *Seriiiss,*were stayed, until the further order of the.cburt.’ Proof of the service of this notice on *Douw,*the under sheriff,' was given. The plaintiff then gave in evidence an order of this court, of the 13th of *January,*1815, by Which the former 'order was vacated, and the sheriff, directed to pay over to the plaintiff, in that suit, the moneys collected by him. Service .of a copy of the Order on *Douw,*the defendant’s deputy, was proved, and a demand of the sum of 508 dollars, mentioned in the return to the executions, before suit brought. A Yerdic.t was found by the jury, for the plaintiff,, for that sum, with interest from the time the demand ,was máde.' ‘ . ^

The. cause was submitted to the court Without argument.

*Per Curiam.*

It is not necessary, in this: casej to decide Whether *Lawyer’s*execution was fraudulent and void, so as to give priority to the plaintiff’s,.because no more is claimed of the sheriff than the avails of the property levied on-after the return-day of *Lawyer’s*execution; and there can be no possible ground upon which the recovery, -to this extent, can be resisted. It is, , certainly, a principle not to be questioned, that a sheriff cannot .levy an execution upon goods and chattels after the return-day *257is passed. The latest period which the law allows for the service of process, is the day on which it is returnable. (2 *Caines' Rep.*244. 4 *Johns. Rep.*456.) It is not pretended by the defendant, that he has paid over the money to *Lawyer*; and, indeed, the return made by him, upon that execution, shows he has not paid it over. He, therefore, has not been misled, or in any way prejudiced, by the rule of *January*term, 1814. And, although the plaintiff might, under the rule of *January*term, 1815, have compelled the sheriff, by attachment, to pay over the money to him, this does not take away his remedy by action. Nor can there be any objection to the recovery of the interest, as found by the verdict, after the order of the court directing the sheriff to pay over the money to the plaintiff, and a demand made upon him for the same. He was. clearly in default, and ought to' be charged with interest on the money thus wrongfully withheld. The plaintiff is, accordingly, entitled to judgment for 534 dollars and 60 cents, as found by the jury.

Judgment for the plaintiff.