Simms, Billups & Co. v. Quinn , 58 Miss. 221 ( 1880 )

Chalmkrs, C. J.,

delivered the opinion of the court. ■

This is an attempt by motion to make the sheriff of Oktibbeha County liable for the amount of a judgment for $16,000 because of his failure to return on the proper day a writ of venditioni exponas issued upon said judgment.

The sheriff had sold a small amount of property under the vendi, but had delayed until Saturday before the Monday on which the writ was returnable, to collect from the purchaser, Kilpatrick, the amount of his bid, $75.

On Saturday, Kilpatrick applied to the sheriff for indulgence until Tueschiy, which the sheriff declined to give without the consent of the plaintiffs’ attorneys. Kilpatrick then applied to the attorneys of plaintiffs, who said to him that whatever arrangements he could make with the sheriff would be satisfactory to them, but that they would not release the sheriff from any legal liabilities that he might incur, nor show him any favors. Returning to the sheriff, Kilpatrick delivered only the first portion of this message, — to wit, that whatever arrangements were made between the officer and the purchaser would be satisfactory to the attorneys, — suppressing the declaration that they would not release the sheriff from any legal liabilities nor show him any favors. Acting upon the message as communicated, the sheriff held the writ until Tuesday, and upon that day returned it with the money — $75 — into court. The motion is to amerce him in the full amount of the judgment, $16,000, for this delay of one daj7 in making the return.

It cannot be sustained. The officer was misled by the message brought him by one whom the plaintiffs’ attorneys had permitted to act as their agent in the transmission of their wishes in the matter. While the officer was not told in so many words that he might hold up the writ, he did receive instructions from which he was fairly led to infer a willingness upon the part of plaintiffs’ attorneys for him to do so. Those who propose to invoke against public officers the severe penalties of,the statute upon which this motion is based, must be very careful to do nothing which directly or indirectly contributes to the omission of duty complained of.

Judgment affirmed.