Hammond v. Richmond , 1 Gunby 61 ( 1885 )

Gunby, J.

The law requiring sheriff to return writs of fi- fa. within seventy days, under penalty of becoming liable for the full amount of the judgment, means something, and the later decisions permitting sheriffs to show that the judgment creditor had no rights, are based on unsound reasoning. We hold, that where the sheriff fails to properly return the writ, his liability is established, and he can only escape by proving affirmatively, not the improbability, but the absolute impossibility of plaintiff’s having realized anything on his debt. R. S. 2408; 19 An. 466.

2. It is the duty of clerks to endorse on the back of each fi. fa. the date of its return, and such endorsement is the best evidence of the date of the return. The omission by the clerk to make such endorsement is highly reprehensible.

3. Where a sheriff fails to seize property pointed out by the judgment creditor, he is bound for the debt, if the complaining creditor show's that he was injured thereby ; R. S. 3495; but if the property pointed out was affected with a pledge or privilege, outranking plaintiff’s claim, and more than suificient to consume the property, plaintiff was not injured by the sheriff’s failure to seize it.

4. Even criminal laches on the part of the sheriff, in wasting and neglecting property seized and permitting it to be spirited away, will not entitle plaintiff to recover from the sheriff and his sureties, if seizures, prior to plaintiff’s, would have consumed all the property, if it had been faithfully sold and accounted for; it is not the province of any litigant to vindicate w'rongs suffered by others.