Bank of Rutland v. Parsons

The term “ writ,” in the statute, [Rev. St. c. II, §40,] which enacts, that a sheriff shall not serve a writ in which he is a party, or interested, or in which a private corporation, of which he is a member, is a party, includes as well a writ of execution, as a writ of attachment. When a statute prohibits any thing to be done, an act done in contravention of the prohibition must be adjudged inoperative and void, if the statute cannot otherwise- be made effectual to accomplish the object intended by its enactment. A sheriff, who receives an execution in favor of a private corporation, of which he is a member, is not liable for neglecting to levy and return it; and it makes no difference, that he served the original writ, in the suit in which the execution issued, by attaching property, and took a receipt for the property and had prosecuted a suit against the receiptor to final judgment, which was unsatisfied by reason of the insolvency of the receiptor.

Trespass on the Case against the defendant, as sheriff of the county of Rutland, for not levying an execution in favor of the plaintiffs against Joel M. Rogers and Jonathan C. Dexter. Plea, the general issue, and trial by the court, September Term, 1847,— Hall, J., presiding. On trial the plaintiffs gave in evidence a writ in their favor against Rogers and Dexter, — the record of a judgment in their favor thereon, — the execution which issued thereon, for the 'neglect to serve which this suit was brought, — and the receipt of the defendant, as sheriff, for the execution. The plaintiffs also offered in evidence a receipt, executed by one Bartlett to the defendant, for property at-attached upon the writ in favor of the plaintiffs against Rogers and Dexter, — an indorsement thereon, signed by Bartlett, acknowledging that the property had been duly demanded of him, — the record of a judgment in favor of the plaintiff against Bartlett, founded upon the receipt, — and an execution, which issued thereon, and which had been returned unsatisfied. To the admission of this evidence the defendant objected, but the objection was overruled by the court. It was conceded, that the defendant was a stockholder in the Bank of Rutland at the time he served the original writ in their favor against Rogers and Dexter, and that he continued to be a member of the corporation until after the commencement of the present suit. It was also conceded, that Bartlett was insolvent, and that the judgment against him was never paid. Upon this evidence the county court rendered judgment for the plaintiffs, for the amount of their judgment against Rogers and Dexter, with interest. Exceptions by defendant. The defendant was a member of the corporation, in whose favor the execution in question was issued; and a levy by him would have been an illegal act. Rev. St. c. 11, §§ 40, 42. As a contract between the parties, the undertaking of the defendant, expressed in the receipt given by him for the execution, to make the levy, was void, because it was a promise to do an illegal act. 1 Wheat. Selw. N. P. 50, n., citing Morris v. Chapman, T. Jones 24. A levy of the execution by the defendant would have been a trespass, which he could not be required to- commit. Hutchinson et al v. Lull, 17 Vt. 133. The defendant could not by possibility make a valid service of the execution; any act of his, in attempting to serve it, would have been utterly void, as an official act. Cleaveland v. Doming, 2 Vt. 534. Nelson v. Denison, 17 Vt. 73. Rev. St. 170, §10; 241, §19. If service be made by an officer interested as a member of the corporation, or inhabitant of the town, for or against which the process issues, it can be taken advantage of only by plea in abatement. Dunmore Manuf. Co. v. Rockwell, Brayt. 18, Holmes v. Essex, 6 Vt. 47. Fairfield v. Hall, 8 Vt. 68. Charlotte v. Webb, 7 Vt. 38, Kellogg ex parte, 6 Vt. 509. Adams v. Wiscasset Bank, 1 Greenl, 361. Merchants’ Bank v. Cook, 4 Pick. 405. Ang. & Am. on Corp. 577. Button v. Cole, 8 Mass. 96. The service is not void; it is legal notice to the defendant, and a judgment against him is neither v&id, nor voidable; and of course the execution upon it will be legal and valid. An officer might doubtless excuse himself from receiving a writ to serve, in which he was interested, and would not incur the statute penalty by his refusal; but if lie receive it, thus giving an implied promise to serve it, he will be liable for his neglect to serve it, and cannot exonerate himself from that liability by force of the statute prohibition. An officer, hold* ing process against a person privileged from arrest, is bound to serve it notwithstanding the claim of privilege, and the only remedy of the party is to claim his discharge by notice to the court, or on habeas corpus; but if he suffer judgment to pass against him, he will be bound by it. Bperry v. Williams, 1 Wend. 32. Leave v, Bell, 18 Johns. 52. Fletcher v. Baxter, 2 Aik. 224. Tarleton v, Fisher, Doug. 671. Booraem v. Wheeler, 12 Vt. 311. Ex parte McNiel, 3 Mass. 288; 6 lb. 264. Brown v. Getchell> 11 Mass. 11, Although an officer will be protected in executing a precept ap* parently regular, although it be really void for want of jurisdiction in the authority issuing it, or in levying an execution regular upon its face, though issued upon a void judgment, yet, if he will under* take to decide for himself as to its validity, he may do so at his peril; — if the process or judgment were really void, he Will not be liable for neglect. Albee v. Ward> 8 Mass. 79. Dillingham v. Snow, 5 Mass. 558. Hill v. Wait, 5 Vt. 124. But the rule is otherwise, as to mere irregularity; and the officer is bound to execute the process. Walden v. Davison, 15 Wend. 575. People v, Dunning, 1 Wend. 16. Parmelee v. Hitchcock, 12 Wend. 96. The prohibitory section of the statute is merely directory, and personal to the sheriff alone. Holland v. Osgood, 8 Vt. 270. Warner v. Mower, 11 Vt. 385. It was necessary, that the plaintiffs, to preserve their lien upon the property attached, should deliver their execution to an officer within thirty days from the rendition of the judgment. Enos v. Brown, 1 D. Ch. 280. Bliss v. Stevens, 4 Yt. 88, By receiving and retaining the execution, the defendant, besides giving an implied promise to levy it, prevented its being delivered to another officer in season to preserve the lien ; and to allow him now to justify his neglect, on the ground of his interest, would be allowing him to take advantage of his own wrong.