Page images
PDF
EPUB

who was lawfully arrested on civil process, either mesne or final;1 for neglect or *refusal to return pro- [*394]

A sheriff or constable, having a fieri facias, is compelled to act at his peril. If the property seized is not that of the defendant, he incurs liability by levying and taking the property. On the other hand, if the property is that of the defendant, and he knows of it, or can know it by reasonable effort, and is required by the plaintiff to levy on it, and he fails or refuses to do so, he becomes liable to the plaintiff in the execution. Pike v. Colvin, 67 Ill. 227. See Harris v. Kirkpatrick, 35 N. J. 392.

As to the liability of the sheriff for failure to proceed with due diligence to collect a judgment, see Kimbro v. Edmondson, 46 Geo. 130; Noble v. Whetstone, 45 Ala. 361; Lowe v. Ownby 49 Mo. 71. He must exercise reasonable skill and diligence under the circumstances of the case. Crosby v. Hungerford, 59 Ia. 712; Elmore v. Hill, 51 Wis. 365; Farwell v. Leland, 82 Mo. 260; State v. Blanch, 70 Ind. 204. Not liable for not levying on an interest in land not of record, defendant not being in possession. Force v. Gardiner, 43 N. J. L. 417. Nor if plaintiff's attorney, when asked, withholds information. Batte v. Chandler, 53 Tex. 613. As to his right to demand indemnity in cases of doubt, see Bonnell v. Bowman, 53 Ill. 460; Smith v. Cicotte, 11 Mich. 383. If an officer returns process long before the return day, to protect him it must appear that he failed after using due diligence to find any property. Henry v. Com. 107 Penn. St. 361. Fact that after levy the property is taken by United States Marshal against his protest will not exonerate him nor will ignorance of the law. Ansonia Brass Co. v. Babbitt, 74 N. Y. 395.

1 Farnsworth v. Tilton, 1 D. Chip. 297; Middlebury v. Haight, 1 Vt. 423; Wait v. Dana, Brayt. 37; Crary v. Turner, 6 Johns. 51; Kellogg v. Gil. bert, 10 Johns. 220; Currie v. Worthy, 3 Jones, (N. C.) 315; Lash v. Ziglar, 5 Ired. 702; Faulkner v. State, 6 Ark. 150; Hopkinson v. Leeds, 78 Penn. St. 396; Lantz v. Lutz, 8 Penn. St. 405; Browning t. Rittenhouse, 38 N. J. 279; Crane v. Stone, 15 Kan. 94; Brown Co. v. Butt, 2 Ohio, 348; Hootman v. Shriner, 15 Ohio, (N. 8.) 43; State v. Mullen, 50 Ind. 598: Pease v. Hubbard, 37 Ill. 257. Every liberty given to a prisoner, not authorized by law, is an escape. Colby

. Sampson, 5 Mass. 310. So is a removal of the prisoner out of the county without authority. McGruder v. Russell, 2 Blackf. 18. Only the act of God or of the public enemy cau excuse an escape. Saxon v. Boyce, 1 Bailey, 66; Cook v. Irving, 4 Strob. 204; Smith v. Hart, 2 Bay, 395; Shattuck v. State, 51 Miss. 575. The sheriff need not go behind a writ fair on its face to inquire into the regularity of the judgment. Watson v. Watson, 9 Conn. 140; Webber o. Gay, 24 Wend. 485; Wilmarth . Burt, 7 Met. 257. But in an action for an escape he may show that the prisoner was privileged from arrest. Bissell v. Kip, 5 Johns. 89; Scott v. Shaw, 13 Johns. 378. And it is of course a defense that the process was void. Contant v. Chapman, 2 Q. B. 771; Albee v. Ward, 8 Mass. 79; Howard v. Crawford, 15 Geo. 423; Ray v. Hogeboom, 11 Johns. 433; Phelps v. Barton, 13 Wend. 68; Carpenter v. Willett, 31 N. Y. 90. And for the purposes of any such action the process is to be considered void, even though good on its face, if in fact it was unlawfully issued.

cess;' for making a false return; for negligently caring for goods, whereby some of them are lost; for neglect to pay over moneys collected, and the like. The rules applicable to the case of a constable are the same, and need not be separately examined.

The same act or neglect of a sheriff may sometimes afford ground for an action on behalf of each party to the writ; as where, having levied upon property, he suffers it to be lost or destroyed through his negligence. In such a case the plaintiff may be wronged, because he is prevented from collecting his debt, and the defendant may be wronged because a surplus that would have remained after satisfying the debt is lost to him. The officer owed to each the duty to keep the property with

Therefore the sheriff is not liable who suffers a prisoner arrested on a warrant to escape, though the warrant is fair on its face, if it issued without the preliminary showing required by statute. Housh v. People, 75 Ill. 487. Of course whatever shows that the plaintiff has suffered no damage, or damage only to a nominal amount, will limit the recovery; as, that the prisoner was insolvent. Hootman v. Shriner, 15 Ohio, (N. 8.) 43; State v. Mullen, 50 Ind. 598. See Williams v. Mostyn, 4 M. & W. 145; Smith v. Hart, 2 Bay, 395; Lovell v. Bellows, 7 N. H. 375; Burrell . Lithgow, 2 Mass. 526; Crane v. Stone, 15 Kan. 94.

For a discussion of the liability of the sheriff for making an insufficient levy, see French v. Snyder, 30 Ill. 339.

1 State v. Schar, 50 Mo. 393. Not liable in Missouri for failure to return unless damage is shown. State

. Case, 77 Mo. 247. But to the contrary see Bachman v. Fenstermacher, 112 Penn. St. 331; Atkinson v. Heer, 44 Ark. 174. Consent of plaintiff to his retaining execution after return day does not exonerate. Ansonia Brass Co. v. Babbitt, 74 N. Y. 395. But the sheriff can only be liable to the person to whom the particular duty

was owing: "the party to whom he is bound by the duty of his office.” Harrington . Ward, 9 Mass. 251.

* Duncan . Webb, 7 Geo. 178; Kearney v. Fenn, 87 Mo. 310, even though no damage is shown; State v. Case, 77 Mo. 247.

* Jenner v. Joliffe, 9 Johns. 381; Conover v. Gatewood, 2 A. K. Marsh. 568; Cresswell v. Burt, 61 Ia. 590; Burns v. Lane, 188 Mass. 350.

Norton v. Nye, 56 Me. 211. Even if collected after the return of the writ. Nash v. Muldoon, 16 Nev. 404. If he delivers the goods, he is liable for the price whether he has received money or not. Robinson Brennan, 90 N Y. 208; Disston v. Strauck, 42 N. J. L. 546, and although plaintiff's attorney consents to a delay in payment. Disston . Strauck, 42 N. J. L. 546; see, State v. Spencer, 74 Mo. 314.

5 The following cases consider the liability of a jailor for escapes: Alsept v. Eyles, 2 H. Bl. 108; Elliott . Norfolk, 4 T. R. 789; Fuller v. Davis, 1 Gray, 612; Way v. Wright, 5 Metc. 380; Wilckins v. Willet, 1 Keyes, 521; Shattuck v. State, 51 Miss. 575. The sheriff in this country is generally the jailer, either in person or by deputy.

reasonable care; and there is a breach of duty to each when he fails to do so.'

*Wrongs to the defendant in the process are committed [*395] either by the service upon him of process issued without authority, or otherwise void, or by disregard of some privilege the law gives him, or by abuse of the process in service. The case of void process has been referred to in another place. All the provisions which are made by law in regulation of the officer's proceedings on civil process, which can be of importance to the defendant's interest, are supposed to be made for his benefit, and they establish duties in his behalf. One of the most important provisions made in his interest is that which sets apart certain specified property of which he may be owner, and wholly exempts it from levy on execution or attachment. In some States this exemption is a mere privilege, and will be waived if not claimed; but in others the law absolutely, and of its own force, wholly exempts the property, and the officer will be a trespasser if he proceeds in disregard of the provisions of law which require him to take steps to have the property set apart for the debtor, even though the debtor remains passive." So a defendant when under arrest is generally entitled to certain privileges in the law, among which, in the cases in which it is given by statute, is the privilege of jail limits. But in any case he is entitled to be treated with ordinary humanity, and any unnecessary severity could not be justified by the writ.

It would be an abuse of process if the officer having an execution against property should himself become purchaser of goods.

Jenner . Joliffe, 9 Johns. 381, 385; Bank of Rome v. Mott, 17 Wend. 554; Bond v. Ward, 7 Mass. 123, 129, Purrington . Loring, 7 Mass. 388; Barrett v. White, 3 N. H. 210, 224; Weld . Green, 10 Me. 20; Franklin Bank v. Small, 24 Me. 52; Mitchell v. Commonwealth, 37 Penn. St. 187; Hartleib v. McLane, 44 Penn. St. 510; Gilmore . Moore, 30 Geo. 628; Banker v. Caldwell, 3 Minn. 94; Tudor v. Lewis, 3 Met. (Ky.) 378; Abbott v. Kimball, 19 Vt. 551; Fay v. Munson, 40 Vt. 468; Cresswell v. Burt, 61 Ia. 590; Burns v. Lane, 138 Mass. 350.

If a bailee of the officer misuses the property the officer is liable. Briggs v. Gleason, 29 Vt. 78; Gilbert v. Crandall, 34 Vt. 188; Austin v. Burlington, 34 Vt. 506.

2 The statutes on this subject are so different that space cannot be allowed here for presenting their peculiar features and pointing out the different consequences when their provisions are disregarded by the officer. They are collected, and cases in the several States referred to, in Smyth on Homestead and Exemptions, Ch. XIV.

sold under it; or if he should make sale without giving the notice required by law, the purpose of notice being to attract the attention and invite the presence of parties desiring to purchase.' Or if he sells more than is sufficient to satisfy the demand and costs. 3

[*396]

*Wrongs by a sheriff to others than the parties to suits are generally a consequence of his mistakes or his carelessness. Thus, he may on an execution against one person by mistake seize the goods of another. He must at his peril makes no mistakes here. It might be urged that, in such cases, the sheriff should have the ordinary protection of judicial officers; for he must inquire into the facts, and he must decide upon the facts who the owner is. But this does not render the functions of the sheriff judicial. Ownership is matter of fact, and the officer is supposed capable of ascertaining who is the owner of goods, just as any one may learn who is proprietor of a particular shop, or member of a specified corporation or partnership, or alderman of a city, etc.

'Giberson v. Wilber, 2 N. J. 410, though it is through a dummy. Downey v. Lyford, 57 Vt. 507.

2 Carrier v. Esbaugh, 70 Penn St. 239; Hayes v. Buzzell, 60 Me. 205; Sawyer . Wilson 61 Me. 529. The、 plaintiff may hold him for such sale. Sheehy v. Graves, 58 Cal. 449. Or should he sell at a different time from that stated in the notice. Smith v. Gates, 21 Pick. 55; Pierce v. Benjamin, 14 Pick. 356. Or at a different place. Hall v. Ray, 40 Vt. 576. See Rosso. Philbrick, 39 Me. 29; Blake v. Johnson, 1 N. H. 91.

Aldred v. Constable, 6 Q. B. 370, 381; Stead v. Gascoigne, 8 Taunt. 526. The sheriff is liable in trover for the excessive sale in such case, but cannot be treated as trespasser ab initio. Shorland . Govett, 5 B. & C. 485.

Davies v. Jenkins, 11 M. & W. 745; Screws . Watson, 48 Ala. 628; Duke v. Vincent, 29 Iowa, 309; Wintringham v. Lafoy, 7 Cow. 735; Wellman . English, 38 Cal. 583; Jones v. People, 19 Ill. App. 300. He is liable for the error, though the names are the

same. Jarmain v. Hooper, 6 M. & G. 827. He is not relieved by showing that he only sold the interest in the goods of the judgment debtor. Rankin v. Ekel, 64 Cal. 446. Nor does he reduce damages by releasing the levy without returning the goods. Kreher v. Mason, 20 Mo. App. 29. Trespass lies for seizing the goods of a stranger to the writ, notwithstanding they are so intermingled with the goods of the debtor that the officer cannot distinguish them, if the owner is present and offers to select his own. Yates. Wormell, 60 Me. 495. But if the sheriff attaches the goods of the wrong person, and while they are in his hands attaches them on a subsequent writ, the last attachment is no trespass; the goods at the time having been in the custody of the law. Ginsberg v. Pohl,35 Md. 505. Not liable for going upon premises of third person to seize goods of debtor if he enters without needless force and remains no longer than necessary. Link v. Harrington, 23 Mo. App. 429.

It is difficult to name any subject in respect to which questions may not be raised; and if the existence of a question could be the test between judicial and ministerial action, there would be very little that could be classed as ministerial. Judicial action. implies not merely a question, but a question referred for solution to the judgment or discretion of the officer himself. If the sheriff is commanded to levy upon the goods of a named person, the fact of his obedience is determined by ascertaining whether or not he has done so; if a magistrate is required to decide justly the controversy between two named persons, or if the assessor is required to value in just proportion the property of two named persons, no one can know whether or not the requirement has been obeyed unless he can look into the officer's mind and by thus ascertaining what was his real judgment, determine whether he has actually obeyed it in giving decision or in making the assessment. The difference is that the sheriff is to obey an exact command, but the judicial officer is to follow [*397] his judgment. Even when the sheriff is embarrassed

by the fact that the name of the defendant in the writ is the same with that of others in the neighborhood, he must at his peril ascertain who the real defendant is, and make service upon him.'

The sheriff in seizing property upon his writ must always respect the liens of third persons. Thus, if he be authorized on a writ against a mortgagor, to levy upon the goods mortgaged, he can only take them subject to the superior rights of the mortgagee, and all his subsequent proceedings must be in subordination to such right. So, where mechanics' or any other liens exist, he must recognize and take in subordination to them, and whatever he may do that prejudices the lien is wrongful.

It has been stated in another place that a sheriff is responsible for the misfeasance and nonfeasance of his deputies. This is the general rule. Where, however, the deputy is employed to do something not connected with his office although he may be employed because of the office, he must be regarded as a mere

'Jarmain v. Hooper, 6 M. & G. 827, 847.

Hobart v. Frisbie, 5 Conn. 592; O'Neal v. Wilson, 21 Ala. 588; Merritt v. Niles, 25 Ill. 282; Worthington

v. Hanna, 23 Mich. 530; Saxton v.
Williams, 15 Wis. 292; Schrader v.
Wolfin, 21 Ind. 238; Wootton
Wheeler, 22 Tex. 338.

« PreviousContinue »