Smith v. Cicotte

Martin Ch. J.: The principal question in this case is that of the right of- a sheriff to require a bond of indemnity before levying a writ of attachment upon property of the title to which there is reasonable doubt; and to refuse to execute the writ by seizure of such property until such bond shall be given. The bill of exceptions shows that evidence was offered tending to show that the only property of the defendant in attachment was that which the defendant was directed to seize; that the title to it, or to portions of it, was in question, and adverse claims were made to it that an agreement had been made by the plaintiff to give a bond of indemnity; that a bond was offered which was sufficient, but before it was actually received and accepted [387] the principal surety found that he had been deceived in respect to his liability, and erased his name, and that such bond was never actually accepted. Shall the Sheriff be liable under such circumstances for refusing to serve the writ? Where a writ of attachment, or an execution, is placed in the hands of a Sheriff, he is ordinarily bound to execute it at his peril. If, however, in his search for property he has notice of adverse claims to such as may be found or pointed out, or reasonable doubt of the debtor’s title, he has the right to demand indemnity before proceeding to the execution of the writ. He is not bound to seize property because directed to do so, if he knows it to belong to another than the debtor, or if he reason, ably and in good faith apprehends that a paramount title exists in another. This is the rule in cases of seizure upon execution (See Comp. L. § 4490); and the same principle must extend to attachments. The one is taking upon final process, the other upon mesne; but both to subserve the same end, namely, the collection of the debt proven or claimed' to be due. * The reasons which authorize him to require indemnity in the-one case exist in the other; and it is moreover a natural and reasonable right. The sheriff should not be bound or required to levy process upon property at the command of a creditor, at his peril, which he knows does not belong to the debtor, or of the title to which he has honest and reasonable doubt: for instance, if he finds it in the possession of another under claim of title, or learns that an adverse or colorable title — as that of mortgagee, or the like — is asserted by another. In such case, he may require indemnity before proceeding to execute the writ. And especially where indemnity is offered and promised, he is most clearly entitled to delay such execution until it be furnished, and refuse to act if it be withheld; for then he acts not entirely by authority of law, but also by agreement with the creditor. It does not lie in the mouth of the latter, under such circumstances, [388] to insist upon the execution of process which he has agreed shall not he executed before he has done some act upon his own part which he neglects; or upon any strict rule of law which he has by such agreement waived. The Judge, therefore, properly charged the jury that, “if the jury found that an agreement was made to give a bond of indemnity, and that the same was not given, then the defendant Avas not liable for not attaching the property, and that it was for them to find the facts from the evidence; that whilst it might be true that the statute as to bonds of indemnity did not apply to writs of attachment, still, if the sheriff could make it appear that the title was not in the defendant, he ought not to be holden, and might make such defense; that as to the second point, if the jury believed from the testimony that a bond of indemnity was agreed to be given, and that it was not done, the Sheriff was not liable for not levying; that it was a question for them to decide whether tie bond executed by Knowles was ever delivered or accepted, and whether Mr. Knowles was so deceived that he was justified in easing his name if the same had not been delivered; that in view of the testimony, it may, perhaps, be unnecessary to decide the other point made by the defendant, that this bond never was the bond of KnoAvles at all; that whilst it may be necessary for the Sheriff to show in a case like this, that the title was in fact not in the defendant in the writ, yet if he showed a chattel mortgage valid on its face, it was for the other party to invalidate it by showing that it was fraudulent, and not for the Sheriff affirmatively to prove that it was not fraudulent; that in this case, the evidence was before the jury to find as to the good faith of the mortgage in evidence.” The Court was also correct in charging “that the question in this case seemed to be whether a good bond was agreed to be furnished, and if so, whether it was in fact furnished, and that these were questions for them to find.” [389] The whole subject was fairly left to the jury, and the judgment must be affirmed, with costs. The other Justices concurred.