Campbell v. Ruger; Farquharson v. The same

Campbell v. Ruger. Farquharson v. The same. Judgment for the plaintiff; and direction on fi. fa. to levy $309,75. Judgment for the plaintiff, and direction On fi.fa, to levy $98,79. Both judgments were docketed at the same time, viz. Oct. 13th, 1820. The executions were both tested, returnable, and delivered to the Sheriff at the same time. They were both levied at the same time on the defendant’s personal property, which was sold under both, August 5, 1822. The' property sold for $263,63. Both plaintiffs attended the sale. Campbell bid off property to' $257,63; and Farquharson to’ fwo judgk ^r^an^one smaller, were docketed at the same time, against the same defendant, in favour of different plaintiffs. Executions were simultaneously issued, delivered to the sheriff and levied on personal property, which was sold under both, and purchased by each plaintiff, at bids differing in amount; held, that the monies were to be equally divided between the two executions, till the smaller one was satisfied ; the residue to be applied upon the larger» The question was upon dividing the sum raised by thé sale'" between the two executions: whether this should be pro rata, or equally, till the smaller éxécution should be sátisfied. On this question being submitted by the Sheriff, it was' argued in behalf of the plaintiff in the 2d execution, that both' plaintiffs "acquired an equal interest in the money raised. The superior amount can give no superior rights, till the smaller execution is satisfied ; ánd then the larger execution will be entitled to the residue; that until the smaller execution is satisfied, the proceeds must be equally divided, dollar for dollar. The same lien having been acquired on each execution, and the sale being upon both, the money must be applied equally upon each. Neither execution could have been levied on real propérty, till the personal, was exhausted, and then for the" balance only; that the parties bidding did not alter the case, but left them on the' same footing, as if the bids had been by third persons. The Court endorsed the following directions to the Sheriff upon the case submitted : [MAJORITY — Curia.] Curia. “ The money collected is to be applied equally to the discharge of both executions, until the execution in the second cause is satisfied; the residue upon the execution in the first cause.” Rule accordingly.