Van Wyck v. Montrose , 12 Johns. 350 ( 1815 )

Per Curiam.

It was an irregularity, in the attorney of Van Wyck, to direct the sheriff to, collect more than the sum mentioned in the condition of the bond, with interest and costs ; and it cannot be cured by any agreement between the parties. To allow the creditor, or his attorney, thus to carve for himself, would be sanctioning a practice that would lead to oppression. No person can be admitted to exact by execution what he claims as a debt, without a previous judicial sanction, explicitly given.

That the judgment was for a penalty, makes no difference in the case.' The reasons assigned by this court, in the case of Watson v. Fuller, (6 Johns. Rep. 283.) are also applicable to the case now before us. Indeed, the present case is much stronger; because, the irregularity, if permitted, would defeat a vested right of the second judgment creditors, who have a fieri facias on their judgment, in the hands of the same sheriff.

Let a rule be entered, that D. Ruggles, the attorney of the plaintiff in the first suit, payback to tbe sheriff the sum of 114 dollars and 66 cents, in order that the same maybe applied towards the fi. fa. now in-his hands, or which he may receive or the second judgment.

Rvjle granted.