Fletcher v. Bradley

*25 The opinion of the court was delivered by Bennett, J.

The evidence in this case shows that Kinney was committed to jail on the execution in its life time, though the execution was not, in fact, returned into the office from which it issued till shortly after its expiration. In the case of Turner v. Lowry, 2 Aikens’ Rep. 73, it was decided, that, to charge bail on mesne process, it was/necessary that the officer should return the execution into the proper office within the “ sixty days,” with his return of non est inventus endorsed thereon ; and that, if he failed so toffio, he was liable for such neglect. This case is relied upon as authority to sustain the present case, but, are the cases analogous ? The law allows a writ of execution to be executed on the day on which it is returnable ; and, consequently, the commitment in this case is valid, and_~the plaintiffs have had the full benefit of their execution. While the body of the debtor remains in execution, there can be no ulterior proceedings, and the return of the execution within the “ sixty days ” is in no way essential to perfect any of the rights of the creditor growing out of its service. If the officer, having the execution in his hands, see the debtor, and has a reasonable opportunity to execute it, in its life time, by the commitment of the body, it is his duty so to do. In the case of Palmer v. Potter, Cro. Eliz. 512, it was held that a return of nulla bona,” made before the return day of the writ, was void, on the ground that, though the debtor may not, at the time, have any goods, yet he may have at the return day of the process.

In Hoe’s case, 5 Coke’s Rep. 90, 91, it is held, that if the sheriff, by force of a writ of fieri facias, levies the debt, and delivers it to the party,, the execution is good without a return of the writ. The levying of the debt was lawful, and well done, and the defendant could not resist the sheriff in making the levy, and the effect of the authority, which the sheriff had by force of the fieri facias, was executed ; and the creditor had the full benefit of it. It is said, in that case, that the words in the writ, requiring the sheriff to make return thereof, are but words of command to the sheriff to make return, which if he do not, he shall be amoved; but yet the execution shall stand in force. In Fulwood’s case, 4 Coke’s Rep. 67, it is held, that the service of a capias ad *26 satisfaciendum, is good, though not returned. The same is the case as to words of seisin and possession; and, generally, as to all writs of execution, which are the most final process known to the law, and after which no judgment is to be given, or further process had. Dalton’s Sher. 179, 180 is to the same effect. By our laws, many executions are required to be executed and returned within the life of them. Where an execution is levied upon land, the execution and officer’s return must be recorded in the registry of deeds and in the office from which the execution issued, within its life, to perfect the title acquired under such levy. And should an officer levy an execution on lands, within its life, and omit making his return and having it recorded until after the time limited for so doing had expired, such levy would be of no avail whatever to the creditor.

This is not at all inconsistent with the general rule, that, where the creditor has had the full benefit of a complete execution of the process, which the sheriff was empowered to execute, he, at least, has no reason to complain of the execution not being returned into the proper office within the time commanded. Our statute provides, it is true, that most of our writs of execution shall issue and be made returnable within sixty days, arid our officers, by an other statute, are required to receive, execute and return the same agreeably to the directions therein given; but it is a non sequitur, that thd creditor can have his action on the case against the officer for the omission to make return of the execution within the time commanded, in a case where the creditor has had the full benefit of a complete service of the execution. If the officer wilfully refused to make return of an execution according to the command therein contained, he might probably be amoved for contempt upon common principles, and our statute, page 203, provides, that, upon conviction thereof, he shall pay a fine not exceeding one hundred dollars. It also provides that he shall pay to the party aggrieved all damages' thereby sustained, to be recovered in an action' on the statute. To give the party a remedy on this statute he must have been damnified. If the writ of execution has been executed but in part, a return of the execution may be necessary to enable the creditor to take his alias execution for the balance. So it may be necessary' *27 to enable the creditor to take an alias against the goods, . ^ chattels and estate of the debtor, where his body has been committed on the first, and the creditor wishes to discharge it under the statute. There is nothing, in these cases, that renders it necessary that the execution should be returned absolutely into the office within its life; l ut, undoubtedly, in these, and in all other cases in which the creditor has suffered a damage from the want of a return of the execution, he would be entitled to his action on the case. In the case before the court the officer committed the debtor on Satur day, the last day of the execution, and on the Monday following, he enclosed it by mail to the justice. There was no unreasonable delay after the commitment, and though the plaintiffs aver in their declaration that they have lost the benefit of their execution by the neglect of the defendant, yet, the evidence shows, there is no foundation for this complaint. There is no pretence that the plaintiffs have suffered any loss from the want of an earlier return.

By the letter of instructions to the deputy of the defendant, he was authorised to act his sound discretion in the management of the execution, secure it if he could, or any part of it, and was revues'e i to write as to tl e pro pects of its collection. When a deputy sheriff acts under the special instructions of the creditor, giving him a discretion to manage an execution as he shall judge best, the sheriff cannot be made responsible for the exercise of such discretion.

It seems the deputy declined, under his instructions, to accept of the thirty dollars and discharge the execution, — whether wisely or not, is immaterial, — and de’ar ed the t ommitment until he could be advised on the subject by the creditors. As the deputy had power to take security for the debt, or a part of it, and use his discretion in the management of the execution, it was, necessarily, within his province to judge of the expediency of a commitment of'the debtor, and also as to the time such commitment was expedient. The deputy thought best to delay the commitment for the advice of the creditors, until a given day, before he made the commitment. If there was not then sufficient time to return the execution into the proper office within “ the sixty days,” the defendant is not responsible for such delay.

In short, the discretionary authority given to the deputy *28 discharges the sheriff of his liability for the official acts of such deputy.

case> ^en> though it should be held, in ordinary cases, to be necessary for the officer, upon a commitment of |DOdy) to return the execution into the proper office within its life, the defendant is not liable, and the judgment of the county court is affirmed.