Cake v. Cannon , 7 Del. 427 ( 1862 )

The Court,

Gilpin, C. J.,

charged the jury that a sheriff must exercise due diligence in executing such a writ, as well as every other writ coming to his handstand must levy it within a reasonable time after he receives it, if he can find within his county goods of the defendant subject to be seized and taken in execution on such a writ; and is bound by virtue of the legal obligation of his office, to make proper efforts to find such goods and to exercise due care and diligence in the discovery of them and also proper discernment, consideration and judgment when counter claims, particularly of a false, fraudulent, or suspicious character, are set up by others to the goods for the purpose of preventing a levy on the property, or the sale of it on the execution. And these rules apply as well to any deputy he may appoint to execute the writ for him, as to the sheriff himself when executing it in person; for what is done by his deputy in such a case, is in contemplation of law done by the sheriff himself, and he is consequently just as liable for it in the one case as in the other. But what will constitute a reasonable time within which such a writ should be levied, or due care and diligence in discovering goods of the defendant or proper discrimination, reflection and judgment on bis part when false, fraudulent or pretended claims are made to the property by others for the purpose of preventing a levy upon them, or the sale of them under the writ, were all questions of fact for the consideration and determination of the jury after carefully considering all the evidence they have heard in regard to the matter.

There was one rule of law, however, which rendered it proper and necessary that every writ like the one in question, should be levied within sixty days after it reaches the hands of the sheriff, and it was that which provides that the lien of the writ shall attach to and bind all the goods of the defendant liable to be seized and taken in execution under it, from the time it comes to the sheriff’s hands, provided it is levied upon them within sixty days thereafter; for without a levy upon them within that time, if they should be sold, or seized in execution in the meantime, under a subsequent writ, the security and advantage of such a lien would be lost. In the case before the court the writ in question came to the hands of the sheriff' on the 30th day of June, 1860, and it appeared from the testimony of both of his deputies who were examined in regard to it, that it was sent in the latter part of July or in the first part of August following, to his deputy who resided in the same hundred in which the defendant lived, to be levied on his property there, and it also appeared by his testimony that he at once proceeded to the defendant’s farm for that purpose, hut when he informed him of the object of his visit, he replied that he was too late, that he had sold all his personal property to Mr. Augustine Mailley, and according to the deputy’s own statement, relying upon this declaration of the defendant, and the good opinion which he had of the character and probity of both Fleming and Mailley, he made no levy upon the goods in question, but soon after reported to the sheriff that the defendant had sold all his personal property to Mailley and had no goods to be levied on. It was also in proof that the sheriff informed the counsel of the plaintiffs of this fact, and was instructed by him to tell his deputy to look again, which he did, and received from him a second time the information that the defendant had no goods, which he also communicated to the counsel of the plaintiffs, without receiving, so far as the evidence discloses the facts of the case, any further instructions or directions from him in regard to the matter; and the next we hear of it, the writ was returned at the ensuing November Term of the court, with the simple return of nulla bona endorsed thereon by the sheriff. It consequently appeared that from the time it had come to his hands until the return of it, he had over four months to levy and collect the debt upon it, and in about thirty days after be received it, he sent it to his deputy to have it levied. There was no intimation, or allegation, however, that this step was not taken by him within a reasonable time under all the facts and circumstances proved in the case.

Indeed, there could hot have been any well founded objection taken to his proceedings on that ground simply, for without any intimation, or admonition, from the plaintiffs or their counsel, that promptitude and despatch was essential or important in the levying of the execution, and in the absence of any instructions from them on the subject, or of ground made known to the sheriff of loss or danger likely to result from delay, he was only bound to exercise ordinary diligence in the matter and might levy the writ at any time within the period prescribed by law.

But that was not a material inquiry or question presented in the case now before the court. For it was an action simply for an alleged false return of the writ by the sheriff, and not for failing to levy it within a reasonable time, and the gist of it as thus alleged, was that the sheriff had falsely returned that there were no goods of the defendant within his bailiwick, that is to say within his county, liable to be seized and taken in execution under it, whereas the plaintiffs contend that the goods in question, were then and there the proper goods of the defendant and that it was the duty of the sheriff to levy the writ upon them, and by reason of his failure to do it, they have sustained loss and damage to the amount of the debt, interest and costs embraced in it; and this was also purely a question of fact for the consideration and decision of the jury. They had heard the testimony of Mailley, as well as that of the other witnesses. Whether he was a bona fide purchaser and the actual owner of the goods in question, and if so when he actually became such purchaser and owner of them—whether before, or after the writ went into the hands of the sheriff, or whether in point of fact, it was but a pretence and pretext got up between him and Fleming for the purpose of preventing the seizure and sale of them under the writ, and whether Fleming, the defendant in it, was not all the while the real and rightful owner of them, were the questions here involved and which they were to determine and decide from all the testimony which they^had heard on the subject and from all the facts and circumstances which had been given in evidence when taken and considered in connection with it. If Mailley had in point of fact' become the bona fide purchaser of them for a good and sufficient consideration from Fleming, and was the real and rightful owner of them and was in the actual possession of them, before the writ went into the hands of the sheriff, and they should be satisfied that such was the case, the plaintiffs could have no right to recover in the action and the verdict should be for the defendants. But if on the contrary, they should be satisfied that Mailley had not thus become the purchaser, owner and possessor of them before the writ went into the hands of the sheriff, then it would become material and necessary for them to consider and determine whether the sheriff was warranted and justified by reason of anything which had been proved in the case, in omitting to levy upon the goods in question as the property of the defendant in the writ, and in making his return to it that he had no goods to be levied on under it. And this brings up a question of law as to what is the legal duty of the sheriff under such facts and circumstances as have been shown and proved in the present case, as to which it becomes our duty to give you the proper instructions for your guidance in the solution of the question of fact which depends upon it.

We have before briefly adverted to the evidence and shall only recur to such portions of it again, as may be necessary to present the matter properly to your apprehension in the application of it. The counsel for the defendants contends that by reason of the information which it was proved the sheriff had on two different occasions given to Mr. Booth, the counsel for the plaintiffs in the writ and also in this action, before the return of the writ, that the defendant in it had no goods which he could levy it upon, and received no instructions or directions from him to levy on the goods in question, or where other goods of his could be found to levy on, except on the first occasion when he merely told him to tell his deputy to look again for them, and also by reason of the motion and application afterward made by him at the ¡November Term of the court for leave to amend the return then made by the sheriff to the writ, which was simply nulla bona, by adding to it, “ and lands levied on as per description annexed,” that the plaintiffs in the present action are estopped and precluded from contradicting or denying the truth of the return as then made, or from alleging or asserting that the goods in question were in fact the property of the defendant in the writ, and should have been levied on as such. We are not prepared to say, for we do not think, if the plaintiffs, instead of traversing, had demurred to the pleas which set up this defence, and had thus brought the matter directly before the court alone for its decision, that it would have constituted in law an estoppel to the action. He, however, had'not done that, but had denied the truth of the pleas or the facts alleged in them and had traversed them and taken issue upon them, and they were accordingly now before the jury to be considered and determined like any other fact alleged and denied in the pleadings and must be decided by them according to the weight of evidence which had been adduced for or against them. The counsel for the defendants has also contended before the court and jury that these several acts on the part of the counsel for the plaintiffs taken together constitute such a clear and unquestionable admission and acknowledgment on his part of the truth of the return as then made to the writ, and such a tacit submission to and acquiescence in it on bis and their .part, that it is not competent for the plaintiffs, and they consequently cannot now be permitted, to dispute or deny it. But neither are we prepared to go so far as to give our assent to the proposition as thus stated by him. We will, however, say to you on this subject, that if the jury are satisfied from the evidence before them that the counsel for the plaintiffs in the writ at any time before the return of it, assented to, or acquiesced in the returns being so made, or if they are warranted in believing from all the evidence they have before them on the subject, that when the sheriff informed the counsel for the plaintiffs of the report which he had received from his deputy in regard to the goods in question, he sought and desired instructions or directions from the counsel to levy upon them, and he gave him no instructions or directions to do so, then we think the plaintiffs are not entitled to recover in the action, and the verdict should be for the defendants. For if the jury were satisfied from the evidence that the sheriff believed from the information which he had received, and had good grounds to apprehend that the goods in question were not the property of the defendant in the writ when it came to his hands, he not only had a right to call on the plaintiffs or their counsel for instructions as to what he should do under the circumstances, but even to demand indemnity from the plaintiffs before proceeding to levy upon the goods in obedience to their instructions.

The defendants had a verdict.