People v. Carnley

Davies, J. The first question presented is—Was the defend [217] ant at liberty to, or could he at any time within ten days from July 18,1852, comply with the notice served on him to return the execution ? On June 8, he had received the execution, and by the terms of it he had until the 7th of August to make the money called for by it. . He could not, therefore, be punished for a contempt for not returning it before the expiration of the sixty days. The order of Judge Mitchell of June 8, 1852, contained a stay of proceedings on this judgment and execution, and this stay was regularly continued until July 24, when the order was made at special term directing a stay until the decision by the general term. This order was clearly in full force until after the expiration of the ten days specified in the notice of July 18, within which the sheriff was to return the execution. . On May 9, 1853, another notice was served on the sheriff, requiring him to obey the mandate of the writ, and as soon as such mandate was obeyed to return the execution. I do not understand this to be such a notice as is authorized by the rules of the court, and for disobedience to which the sheriff may be punished as for a contempt. To execute the mandate of the writ, I understand him to be restrained by the order of Judge Mitchell of June 8,1852, restraining him from selling by virtue of the execution until the further order of the court. I do not find among the papers any order vacating ‘ this, and I must therefore assume it to be in force on May 9, 1853. It therefore follows that the sheriff could not on that .day obey the mandate of the writ, and by the notice served he is not required to return the writ until such mandate is obeyed. I am not able to see why he was not excused until he had some evidence that the order of June 8, 1852, had been vacated. He was not required to return the writ until the mandate of it was obeyed. This he could not do, and I do not think it would be just to punish him as being guilty of a contempt for not returning this execution pursuant to the requirement of this notice. I feel less reluctance in arriving at this conclusion as I am [218] quite- satisfied that the late sheriff was placed in a most difficult and embarrassing position, and has endeavored to do his duty. The facts disclosed show that if any leniency was to be expected it was from the side of the plaintiff, and that from the defendant, if he overstepped the strict line of his duty in the slightest degree, he would be held to the most rigid accountability. The motion for an attachment is denied.