Wright and Ely against Hooker

Wright and Ely against Hooker. estate^nd” a JCfa- vacated, ¡n behalf of the Jmty floriff action having against ^"the ^eriff for the by the statute ing misdescri¡,i the^adVer-fisement by mistake; on paying the motion "Ld^f the suit against deputy having ?c,‘?d in £ A deputy of the sheriff of Oswego had, by mistake, advertised the defendant’s farm for sale at the house of the defendant, upon a fi-fa. under a wrong description; but he sold the farm and gave a certificate of sale by a full and correct description including the No. of the lot. The sale took place, not at the defendant’s actual dwelling house; but at his late dwelling house on the farm- sold, .from which he had removed a few months before; but to which the deputy madé affidavit hé expected- he would shortly return, as he informed him- that such was-his intention, and he owned the house at the time of the sale. The.députy also swore that he sold without discovering the error nn description t , . that he could not ascertain the number of the lot which was, therefore, omitted'in the advertisement; and the misdescription was in the length of one of the boundary lines, being, as he believed, by mistake of the printer, advertised as 78 chains and 50 links -long, whereas- it should have been. 28. chains and 50 links ; that he believed, from repeated conversations with the defendant, that he fully understood where the sale was to he; that the proceedings were in good faith. Hooker had sued the sheriff of Oswego, Otis Hart, for the penalty given by the statute (1 R. L. 505, s. 13) for selling real estate without duly advertising it-. Several affidavits were read on the part of Hooker to rebut the allegation of good faith. It appeared that the plaintiff, "Wright, bid off the farm by his agent; no money was paid but the amount bid was endorsed as received by the sheriff on the fi. fa. and a return made accordingly. On personal notice of the motion served on the defendant and on the plaintiffs’ attorney, J. Platt, in behalf of the deputy, moved to vacate the sale, certificate, receipt and return upon the fi. fa. G. C. Bronson, contra. [MAJORITY] The Court, being satisfied that the proceedings were in good faith, granted the motion, on payment of all the costs of opposing this motion, and the costs in the action brought against the sheriff. Rule accordingly.