Hammett v. State ex rel. Lindsay

Oldham, J. The declaration in this case is most clearly insufficient. The writ of execution recited in the breach, commanded the sheriff to levy the judgment specified therein of the goods and chattels, lands and tenements of the defendant in the execution, and for want of sufiicient goods and chattels and real estate then to arrest the body of the defendant. The sheriff was not authorize ed nor required to arrest the body, only in case of an insufficiency of effects of the defendant to make the money. It must therefore be made to appear by the declaration that there was not a sufficiency of goods and chattels and real estate of which to levy the judgment, before the sheriff can be held liable for not arresting the body of the defendant in the execution. The declaration is further defective in not averring that the sheriff failed to have the money before the court on the return day of the execution. State, use &c. vs. Engles, 5 Ark. Rep. 26. Let the judgment be reversed and the cause remanded.