Commonwealth v. Magee

Bell, J. It is true a sheriff must use due diligence to levy and make the money demanded by an execution placed in his hands. What will amount to due diligence must necessarily vary with the circumstances of each case; but it may be safely affirmed that when there are no peculiar reasons known to the sheriff calling for. the exertion of unusual energy, and no special request by the plaintiff or his agent for immediate action, a delay such as occurred here before the delivery of the judge’s order of the 4th of May, in the absence of collusion or fraud, will not be deemed laches to fix the officer for loss of the debt. Indeed, no fact is suggested on the record tending to show that the lapse of time that intervened between the delivery of the writ and the making of the order, endangered the plaintiff’s demand. The execution which eventually swept the goods of the defendant, Ernest, was not issued until long after, and its success was consequent, not on the delay of the sheriff, but incidentally upon the legal effect of the judge’s interference. The inquiry is thus reduced to the single question, whether his order to stay proceedings was obligatory on the sheriff, or a nullity, commanding neither respect nor obedience. The authority that a judge exercises at chambers in a cause pending, is the authority of the court itself; Doe dem. Prescott v. Roe, 9 Bing. 104; 2 M. & S. 119 ; 1 Dowl. P. C. 274. And it may be enforced by attachment issued by the court, for the reason that disobedience of a judge’s order is a contempt of the court, and punishable as such. It is said, that, upon any other principle than that of delegated authority, it would be difficult to demonstrate the validity of many of the acts done by judges in cases and under circumstances in which the legislature has not specially invested them with power, in their individual capacities. This species of jurisdiction is exercised ex necessitate rei to prevent injustice and oppression, and to facilitate and direct the interlocutory proceedings of suits at law. It consequently embraces a variety of subjects more or less important to a proper administration of justice. Some of them are of course; and the administration of others calls for the exertion of a sound judgment and discretion. It is properly, therefore, under the control of the court from which the authority is derived, and to which a dissatisfied party is at liberty to appeal. Among the subjects which reasonably fall within the circle of this jurisdiction, the power of staying an execution issued in vacation has been repeatedly recognised and acted on. Such an authority to be exercised by a single judge, is [247] indeed necessary to prevent oppression, and to prohibit the undue sacrifice of property illegally levied. For these purposes it should be liberally, though cautiously, exercised. There can exist, therefore, no doubt that a judge of the Court of Common Pleas possesses authority to make such an order as is complained of here, and, when properly made, that it is obligatory on the officer to whom it is addressed. But while this is conceded, it is insisted that the order under consideration was coram, non judice, and void for want of previous notice to the plaintiffs in the execution. It is very true that the proper mode of proceeding in most cases is by summons, in the nature of a rule nisi, fixing a day for a hearing, and served on the opposite party. Without this the judge ought not to interfere, unless, indeed, the order or direction sought is of course. When the order is made, notice of it should be given to the party to be affected by it; otherwise he is at liberty to disregard it: Bagly’s Prac. 15, et seq. But notice is not always necessary, for in some cases an order may be without summons. Nor is the omission of it fatal to the validity of the proceeding, ab initio, in any case. Though it is highly proper, and indeed indispensable to correct practice, a neglect to give it is but an irregularity which, upon application, would furnish a sufficient ground to rescind the order made, but would not justify the officer’s refusal to obey it. The power of acting residing in the judge, it is no part of the sheriff’s business to inquire whether it has been executed in an orderly manner, or to determine how far the steps properly precedent to the order have been taken. In this respect, the fiat at chambers is analogous to a writ, which the sheriff is bound to execute, though it be irregular; the distinction being between process voidable for irregularity, and process void by lack of jurisdiction of the subject. Nor was it the duty of the sheriff to notify the plaintiffs in the execution, of the receipt of the judge’s order. He was justified in presuming that all had been rightly acted; and could not with propriety, or for any purpose of legal effect, inquire further. Some degree of diligence was due from the plaintiffs ;• and an application from them to the judge, would doubtless have procured a recission, or at least a modification of the order, by the annexation of a condition preservative of their priority of lien: Clark v. Manns, 1 Bowl. P. C. 656; Bagly’s Prac. 29. Either of these cotírses was within the power of the judge. The first would probably have been pursued, had he, on inquiry after summons, been satisfied his order was irregular and improperly obtained. The latter might have been effected by a direction to stay proceedings, after levy. [248] made, the levy to remain as a security. But lacking any motion of this sort, it certainly lies not in the mouths of the plaintiffs to impeach the sheriff of misfeasance in the non-execution of the fieri facias. His hands, as we have seen, were tied. It is not enough to aver the plaintiffs knew nothing of the order, and could therefore take no steps for its abrogation or amendment. The answer is, they might have known it, had they inquired of the sheriff touching the non-execution of the writ: an inquiry as commonly made as it is natural. That they did not do this, is their misfortune, if not their fault; the consequences of which are not to be visited upon the officer, who is in no default. The truth is, the inceptive. error was committed by the judge; first, in acting upon an ex parte hearing, and next, in granting an unconditional order, without respect to the rights of the plaintiffs. The result of this mistake, in this particular case, ought to warn the associate judges of the commonwealth, who are not expected to be learned in matters of law, against a similar interference with process, without an opportunity first given to the antagonist party to be heard. The English mode of procedure in such cases is clearly pointed out in Bagly’s Practice, at Chambers, cap. 1, and being well calculated to protect the rights and interests of all parties, should be followed, here, as closely as possible. The inquiry recurs, what was the effect of the judge’s order ? Certainly to hang up the execution until after the return day. Its functions were thus suspended until, by lapse of time, its vitality was extinguished. Beyond the return day, its operation and vigour could only have been preserved by an actual levy; or rather, the effect of the levy being to place the goods in gremio legis, they would have so remained for satisfaction of the plaintiffs’ execution, unless released by their consent or misconduct, or by operation of law. But a levy under the first execution being wanting, it had no hold on the goods after the return day. Consequently, the second execution was the only effective one in the hands of the sheriff at the time of the sale of the goods. The proceeds were therefore properly applied in satisfaction of it. The non-return of the first execution until after November Term, is not such negligence as of itself makes the sheriff liable to an action. Though it would be better, regularly, to make return of all such writs, it seems to be settled he need not do so, unless specially ruled : Bingham on Executions, 25Í; Watson on Sheriffs, 83. But were this otherwise, the neglect to return the writ is not assigned as a breach of the official bond, and, therefore, presents no subject for inquiry here. Nor is there anything in the breach sug [249] gesting a false return. It has already been shown that the'authority exercised by a judge at chambers, is the authority of the court. His order is, in legal contemplation, the order of the court, and may, without impropriety, be so treated in a return of the writ. The objection to the evidence is consequently unsound, and the averment of a false return unsustained. ■ Judgment affirmed.