DeLongchamp v. J. W. Hicks & Co.

By the Court.

Lumpkin, J.

delivering the opinion.

The plaintiff in error in this case, Ferdinand DeLongchamp, was arrested upon bail process; and having deposited the amount of the debt with one C. H. Smith, the Deputy Sheriff failed and neglected to take bond from the defendant to answer the debt; but took Smith’s bond to indemnify and save him harmless; provided the debt was recovered. Afterwards D. S. Printup took up Smith’s obligation and substituted his own in its place.

Right here, we beg leave to say, that while we doubt not that the interposition of the friends of DeLongchamp was prompted by the belief that he was harshly dealth with, still we must say, that it is an interference, not to be countenanced by the Courts, and so far as the arresting officer is concerned, highly reprehensible.

A judgment was obtained against the defendant and a return of “no property” made upon the execution issuing thereon. And now the question is, is the Deputy Sheriff liable by rule for the debt? Some of us think the 50th section of the Judiciary Act of 1799, (Cobb 1142,) broad enough to cover this case. It declares that “ 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.”

One member of the Court thinks, the neglect to arrest the defendant in this section, means upon final, and not mesne process ; especially as the Sheriff and his securities are made chargeable as special bail, under this same Act, for failing or neglecting to take bail, or for taking insufficient bail. But notwithstanding this provision, no one would doubt but that the Sheriff would be liable to suit or action upon his bond, for his failure to take bond in this case; and that the remedy, by making him and securities liable as special bail, is only cumulative. If still liable then to an action, why not to rule, independent of the 50th section, and even at common law, for his contempt of Court in refusing to execute his process in this case. And liable not only criminaliter, but to the party injured, just as much so as failing to arrest the defendant upon ca. sa. Í The proceeding by rule is preferable every way jo an action. It is more summary, and therefore more salutary, and yet deprives the officer of no right. The party aggrieved must show the injury he has sustained, the same as if he had sued. No wonder the redress by rule is superseding in England, that by ordinary süit. It works better, because more speedy and less expensive, and greatly more efficacious.

•We all concur, that under the peculiar facts of this case, the highly culpable conduct of the officer, in refusing to perform his sw©rn duty, and having the money, if not in hand, at his command, that he is subject to rule in this case.

Had he regarded the obligations imposed on him by his oath, of office, “that I will faithfully execute all writs, warrants, precepts and processes, directed to me as Sheriff of the county, and true returns make, and in all things well and truly, and without malice or partiality, perform the duties of the office of Sheriff, during my continuance in office, and take only my lawful fees; sojhelp me God,” the plaintiffs would have got their money long since.

Judgment affirmed.