Colley v. Morgan ( 1848 )

By the Court.

Warner, J.

delivering the opinion.

By the Judiciary Act of 1799, it is declared, “ the sheriff shall be liable, either to an action on the case, or an attachment for’’’ contempt of Court, at the option of the party, whenever it shall appear that he hath injured such party, either by false returns, or by neglecting to arrest the defendant, or to levy on his property, or to pay over to the plaintiff or his attorney, the amount of any sales which shall be made under, or by virtue of any execution, or any moneys collected by virtue thereof.” Prince, 431. An attachment for contempt was made against the sheriff, in the Court below, for neglecting to arrest a defendant in execution, alleging that the plaintiff in ca. sa. had been injured by the default of the sheriff. By the return of the sheriff, it appeal’s he arrested the defendant in the ca. sa. and took bond with security, for his appearance to take the benefit of the honest debtor’s Act of 1823. That Act provides, that when a defendant in ca. sa. shall be arrested, and is desirous to take the benefit of the Act, he shall tender to the sheriff a bond, payable to the party at whose instance the arrest is made, in twice the amount of the debt, conditioned for his appearance at the next term of the Court, in which said ca. sa. was obtained, then and there to stand to and abide by such proceedings as may be had by the Court, in relation to his taking the benefit of the Act, and in case of failure to appear, judgment shall be entered up instanter, upon said bond, against the principal and his securities, to be discharged upon the payment of the debt and costs. The Act further provides, that upon the debtor tendcringsuch bond, it shall be the duty of the sheriff to release him from-custody, any law, usage or custom to the contrary, notwithstanding. Prince, 291-2. The sheriff' released the debtor from custody, upon his tendering a bond, in good faith, but it is objected, that the bond is void, as not being in twice the amount of the debt, and therefore, is no security to the plaintiff in the ca. sa.

[1.] The Act does not declare, that if the bond shall be taken in any other manner than is therein prescribed, it shall be void ; and in our judgment, it is not void, but good, and binding on the parties. It does not lie in the mouths of the obligors to object to the bond, because it is less onerous than the Statute requires. Burroughs vs. Louder, et al. 8 Mass. Rep. 380.

The plaintiff' in ca. sa. was entitled to have entered up judgment on it, for the amount of his demand, if the principal debtor had not appeared at the Court. Although the bond is not in double the amount of the plaintiff’s demand in the ca. sa. yet it is for an amount sufficient to cover his demand. The plaintiff, therefore, in the language of the Act of 1799, was not injured by the act of the sheriff in taking the bond for a less amount than was required by the Act of 1823. But the return of the sheriff further shows, tha the had the body of the defendant in ca. sa. at the Court, ready to surrender him, and urged that as a reason why he ought not to be attached for contempt.

[2.] According to the return of the sheriff he was not guilty of a voluntary escape, but a negligent, escape, and had the right to re-take the defendant, and surrender his body in Court, as it appears from the record he offered to do. In order to subject the sheriff to an attachment for contempt under the Statute, it must appear that he has injured the plaintiff' in ca. sa. by neglecting to arrest the defendant. The sheriff’s return is admitted to be true, in which he states he did arrest him, and took the bond in good faith, and that bond in our judgment is good, and binding on the parties to it, and in default of the appearance of the principal debtor, judgment could have been entered thereon against him and his securities. But the sheriff'farther shows, he had the defendant in Court, ready to comply with its order. How, then, has the plaintiff in ca. sa. been injured'? If the sheriff had been guilty of a voluntary escape, then he would have had no right to have re-taken the defendant, and surrendered his body in Court; but he was not guilty of a voluntary escape, and therefore had the right to re-take him, and have him in Court, to answer whatever demands the plaintiff in ca. sa. might have against him. His body was legally there, either to take the benefit of the Act for the relief of honest debtors, or be imprisoned until he was discharged by due course of law.

Let the judgment of the Court below be reversed.