The levy of an execution for an amount which, by reason of accident or mistake, is excessive, is not necessarily in all cases wholly void.
DOE, C. J.
If the amount secured by the attachment could not exceed $2,000, the levy might be sustained to that amount. Avery v. Bowman, 40 N.H. 453; C. P. Institution v. Stone, 52 N.H. 365, 368; Hobbs v. Hobbs, ante, p. 81. The defendants might be required to deposit $110 with the clerk for the plaintiff, or to convey to the plaintiff a proportional part of the land; or, without a conveyance, the levy could be upheld as establishing a good title to a proportional part. If a conveyance were made, it might contain a stipulation that the expense of a partition should be borne by the defendants. They might be required to obtain partition at their own expense. The plaintiff might be allowed his election of land or money to the amount of $110. In various ways the plaintiff could be indemnified, and justice done without invalidating the whole levy. When the defendants complied with all the conditions imposed upon them, judgment could be rendered on the verdict. The question, whether an officer is authorized to attach property to an amount greater than that named in the writ, in this case is not, and in other cases is not likely to be, of great practical importance.
Motion denied.
FOSTER and STANLEY, JJ., did not sit.