Scott v. Dow

The opinion of the court at this term, was delivered by Hornblower, C. J. The first ground on which the claim for an amercement is founded, is, that the sheriff has neglected to file a just and true inventory of the goods and chattels, &c. The case of the Paterson Bank v. Hamilton, 1 Green, 159, is conclusive against the plaintiff on this point. It is true, the instructions given to the sheriff to stay proceedings on the execution, in this case, are not in such broad and distinct terms, as they were in the case just cited; but they are in effect and substantially the same. In that case the attorney for the bank wrote to the sheriff, that he might “ adjourn the sale, and stay until further orders.” In this the plaintiff writes to the sheriff, after having given him a notice of amercement, that lie should not move to amerce him pursuant to the notice, at the September term, but should trust to his raising the money in the following vacation. This was not only a waiver of the notice that had been given, but of all exceptions to the sufficiency of the return, and in the language of the court, in the case above mentioned, it absolved the sheriff from any neglect to execute the writ which had previously occurred. The duties and the responsibilities of sheriffs are unpleasant and onerous; they ought to be dealt with in all fairness and candor, and again to use the language of the court in the Bank v. Hamilton, “ If the plaintiff meant to have held the sheriff to any previous liability, so as to have afterwards enforced it against him, he should have abstained from all interference, or have given his direction in a qualified manner, substantially, but distinctly apprizing the sheriff, that the delay, if it occurred, was to be at his risk and to rvaive no existing liability on Iris part.” It is no answer to say the instructions were only permissive; so they were in the case before cited; the language there was ‘you may adjourn, &e.’ Here the plaintiff says, ‘ I shall not move to amerce you, &c.’ [352] but shall trust to your raising the money in the next vacation.' which is nothing else, in other words, but saying you need no* proceed to execute the writ any further at present; I don’t want you to raise the money now; it will be time enough to do so next vacation. Suppose the sheriff, notwithstanding these instructions, had proceeded to a sale of defendant’s property,, would not the defendant have had just reason to complain of the sheriff’s conduct, as a wanton and unnecessary act of oppression ? A plaintiff ought not first to disarm a sheriff, and then hold him liable for not executing a writ. If a plaintiff is willing to indulge his creditor, he ought not to do it at the hazard or expense of the sheriff, nor by exposing him to the complaints and censures of the defendant, for pressing the execution with needless severity. The second ground for amercement, specified in the notice, is, that the sheriff has neglected, for the space of two months, to render to the plaintiff the moneys received on the sale of the defendant’s estate, &c. But there is no evidence or pretence that any moneys have been so received, and consequently this ground of amercement is unsupported. The third and last reason assigned in the notice is, that the sheriff has neglected or refused to execute the writ of execution according to law. The word “ execute” as used in the twenty-second section of the statute, Rev. Laws, 241, on which this notice is founded» cannot be restrained to the limited sense, very properly assigned to it in the case of Den v. Young, 7 Halst. 300. In that case the court were considering the meaning of the word ‘ executed ’ as used in the thirteenth section of the act making land liable to be sold for the payment of debts, Rev. Laws, 430. The legislature, in that statute, were prescribing a rule of priority between,persons claiming under executions; but in this, they are subjecting the sheriff to liability for neglect of his duty. The word execute, as here used, must be taken in the larger sense of the term, mentioned by the Chief Justice in the case of Den v. Young, viz. to fulfil or complete the execution. This the sheriff has certainly neglected to do, for although the plaintiff arrested his progress prior to September term, 1833 ; yet he distinctly gave him to understand he would expect him to raise the [353] money during the next vacation. The sheriff neglected to do so, or to proceed to a sale, and thus to fulfil or complete the execution, as he ought to have done, and had time enough to do. For this neglect no excuse is offered. It is objected that the notice of amercement is dated the 16th January, 1834, whereas it was served, and the affidavit of service made, on the 15th of that month: this is unimportant; the notice would have been good without a date, or with an impossible date. It operated as a notice from the time of service. The sheriff must be amerced. Cited in Stryker v. Merscles, 4 Zab. 544 ; Waterman v. Merrill, 4 Vr. 382 ; Harris v. Kirkpatrick, 6 Vr. 393 ; Kemble v. Harris, 7 Vr. 528-530.