Kemble v. Harris

¶1The opinion of the court was delivered by

¶2On the argument in this court it was urged that the notice of amercement was insufficient, because it stated the grounds of the application to be that the sheriff had “ neglected and refused to execute the writ of execution, and that he had neglected to file a just and true inventory of the goods and chattels, lands and tenements levied on and taken in execution ” under the writ, which was a fieri facias,. while judgment of amercement was asked solely on the ground that the sheriff had not proceeded to sale of the property levied on. It was insisted that the words " writ of execution,” in the twenty-second section of the act concerning sheriffs, (Nix. Dig, 891,)* under which the proceedings for amercement were taken, have reference to a writ of capias ad satisfaciendum, and not to a writ of fieri facias, and that if that section authorizes an amercement for neglecting or refusing to execute & fieri facias, this case is not within it, because a writ of fieri facias is executed by levy and return. In Scott v. Dow, 2 Green 350, it was held that the word "execute,” used in connection with these words in the section referred to, is to be taken in the sense of fulfil or complete, and that if a sheriff, having levied under a fieri facias, unlawfully neglects or refuses to proceed to a sale, he fails to fulfil or complete, and therefore to execute, the writ. Stryker v. Merseles, 4 Zab. 544.

¶3In Waterman v. Merrill, 4 Vroom 379, the court say on this subject, construing the word with reference to a fieri *529facias: “ To execute the writ in the sense of the act is to do all that the writ commands to be done.” These decisions are according to the plain signification of the term as it stands in the statute, and it is evident that the words “ writ of execution” were intended to embrace writs of fieri facias, as well as writs of capias ad satisfaciendum.

¶4In the ease before us, the sheriff levied on the goods in the possession of the defendant, but proceeded no farther towards a sale. While it appears that adverse claim was made, it does not clearly appear that it was in writing. If it was, no notice was given under it by the claimant to the plaintiff.

¶5The rights and responsibilities of the plaintiff and the sheriff, therefore, remain as at common law.

¶6A few days after making the levy the sheriff apprised the plaintiffs’ attorney that the defendant disclaimed ownership of the property ; that claim was made upon the property by the defendant’s wife, and that in all probability proceedings with a view to sale would eventuate in a formal claim to all the goods and a trial of title.

¶7In reply to his request for instructions then made, the attorney directed him to make a minute levy, a careful and exact appraisement, to allow the defendant his selection under the statute, to get from the defendant’s wife a statement of her claim, and to send him a copy of the appraisement, selection and statement. He promised at the same time further instructions after these directions should have been complied with. So matters stood until the 24th of May, when the sheriff wrote to the attorney excusing himself for not having made the appraisement, and again declaring his willingness to proceed if required, renewed his request for instructions.

¶8To this the attorney replied by asking for copies, but neither giving nor promising any further instructions. The plaintiff insists that the sheriff, after receipt of this last communication, returned the writ without further effort to make the money. Conceding this, there is no ground for amerce*530ment. The sheriff had a right to return the writ when he did; the return day was long passed. The attorney had not directed the sheriff to proceed to sale.

¶9From the correspondence, the latter had reason to conclude that he was to be guided and governed by the directions he should receive from the former, and that that was to be the limit of his responsibility. Under the circumstances, he could not have expected to be held liable for not proceeding to a sale until he had disobeyed reasonable orders to that end.

¶10Where,- as in the case before us, an adverse claim is set up to goods levied on, and the sheriff and plaintiff’s attorney are in correspondence as to the action to be taken in the premises, the former asking and the latter promising instructions, the-sheriff is not liable to amercement until he shall have disobeyed positive, reasonable, lawful directions.

¶11The case, in this aspect, falls within the principle of Paterson Bank v. Hamilton, 1 Green 159; Leroy v. Blauvelt, 1 Green 341; Scott v. Dow, 2 Green 350; Stryker v. Merseles, 4 Zab. 544; and Waterman v. Merrill, 4 Vroom 379.

¶12In Scott v. Dow, the court say: “ A plaintiff ought not first to disarm a sheriff, and then hold him liable for not executing a writ.”

¶13In the present case, however, no reasonable lawful orders-were possible, owing to the character of the levy.

¶14The writ was returnable on the very day on which it was delivered.to the sheriff.

¶15The levy was made two days afterwards. It was therefore-a nullity, and the sheriff was liable to be treated as a trespasser for making it. He could not lawfully have sold under it. He cannot be amerced for not proceeding to sale under a void levy.

¶16Nor is he, under the circumstances, estopped from setting up this defence. He communicated to the plaintiff’s attorney the fact that the writ had come to his hands on its return day, and that he had levied under it, stating the date of the levy. Both must have known that the levy was a nullity, *531and then subsequent correspondence must be viewed in the light of that fact.

¶17The judgment of the Supreme Court must be reversed.

¶18For reversal — The Chancellor, Chief Justice, Depue, Van Syckel, Woodhull, Dodd, Lathrop, Lilly, Wales. 9.

¶19Far affirmance — None.