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1860 Excerpt: ...of those goods and intended to levy upon them, they would have been taken with the other goods to the auction room for sale.
Besides, the only claim the plaintiffs make in their bill to the goods stored in the garret is that after the levy they were secretly removed by Brown, or some one under his direction, to the upper part of the building, where the sheriff had no access, and there secreted until April, when they were removed by Davidson.
This allegation, so far as it relates to removing and secreting the goods, is not sustained but negatived by the proofs.
There was obviously no levy upon any other goods of Brown than those in the store-room entered by the sheriff.
The first exception to the report of the referee was therefore well taken, and was erroneously overruled.
The defendants' counsel, on the argument, insisted that Corning & Horner were not chargeable with the goods, or their value, sold to them before this suit was brought.
If this suit had been the first proceeding towards appropriating the goods or their value to the payment of Rathbone's debt, the position of the defendants' counsel would have been just, and borne out by authority.
But in this case an actual lien had been acquired by a seizure of the goods, as against which neither of the defendants had a right to intermeddle with them without being able to establish the validity of the assignment.
The objection to Conklin was premature.
It had not appeared that he was under-sheriff when he was objected to, and after it did appear the objection was not renewed--if it had been he was indemnified and competent.
It was also objected that the plaintiffs had no common interest in the recovery that entitled them to file their bill.
Each had an interest in preventing a multip...
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