Hustick v. Allen

A sheriff is bound to return a particular in-goods^has6 //a1’under a After having rchas seized under the sheriffcañuot deny the legality of the seizure; he is toundby the re- Where an irreX.A-'has'heen51 plaintíffproceeds to sue out fs executed, he1 against Ptheeed sheriff on the ’ ground of irregularity in his pro- A sheriff may he1?e0rutdoffter office.

IN' this case Frelin&'huusen for the plaintiff had obtained a ° \ , . rule upon Allen the sheriff of Morns, to show cause why he should not be amerced in the amount of debt and costs for which a judgment had been obtained against one Ho el. The ground of the application was the neglect of duty by the sheriff in not returning a particular inventory of the property levied ppon, but after specifying a few articles saying “ and. Qn all his household goods, value 6dP ° * -Stated that the fi. fa. was returned to April 1791, that a former sheriff, under a prior execution and levy, had sold all HoePs property and household goods, which had proved insufficient to satisfy the first execution. That Hustick took out a ca. sa. to Septemper term 1791. pro residuo having deducted the sixpence, uPon this writ Hoel was taken and committed to prison. He argued 1st that the household goods, being under a . . „ , , , 7 , prior seizure, were not liable to be again levied upon. The property is absolutely divested by the first levy. If the seizure was theSai> the inventory Was unnecessary, and would have been nugatory; — and it would be hard to say that the sheriff should be bound by a void act, particularly when it could not operate to the prejudice of the plaintiff, Clerk v. Withers, (a) 2d That the taking out the ca. sa. was a waiver of the plaintiff’s right to proceed against the sheriff. He has made his election and must abide by it, Hob. 59,60. 3d That Allen being now out of office cannot be amerced. The art only speaks of sheriffs, Allen is not a sheriff; it is a penal act, and must be construed strictly. % Vineras abr, 434. sec. 13.