42 Ky. 325 | Ky. Ct. App. | 1843
delivered the opinion of the Court.
This appeal is prosecuted by Basset and Haydon, to reverse a judgment of the Henry Circuit Court, dismissing their motion, brought against Bowmar, Sheriff of Woodford county, and his sureties, to recover the amount of an execution in their favor and thirty per centum damages thereon, for a failure to retprn it within the time prescribed by law. The execution was for about $1900, with some interest and costs, in favor of Basset and Hay-don against McConathy and Taylor, and was issued from the Henry Circuit Court, on the 17th of December, 1840, directed to the Sheriff of Woodford county, returnable on the first Saturday of February, 1841; after which one month was allowed by law for its return, before the penalty denounced for a failure would be incurred.
It appears that Haydon, one of the plaintiffs, took the execution from the county of Henry to that of Woodford, and that C. M. Mathews, (a witness,) went with him to ascertain whether the debt could be made out of the estate of Taylor. And it may be assumed not only that
' The witness, Mathews, states that while in the office of Kinkead, the execution was handed, by himself or Hay. don, to the deputy, Blackburn, and he was directed by them to make the money if possible; that he took the execution and remarking, that he thought Taylor was insolvent, and that he had returned several executions against him “no property,” said he would do his best to make the money, as the amount would pay him well if he should succeed.
It appears that a previous motion, returnable to April, 1842, had been made against the defendant; and the witness, Kinkead, says that after that motion had been made,
The son of the deputy stated, that according to Kinkead’s instructions, he examined his father’s papers with his father, for said execution, but they could not find it; and that this examination must have been made some time the last of February or first of March, 1841; that he was attending the law lectures in Lexington, which enabled him to fix the time, and that he never saw the execution. The execution was never returned.
The statute under which this motion was made, (Stat. Law, 626,) places the right of recovery upon the Sheriff ’s failure, neglect, or refusal, “without good cause,” to return an execution within the time prescribed. The statute is one of a highly penal character, and its enforcement in a case in which the failure of the Sheriff has been a mere casual omission or even neglect, without any appreciable injury to the plaintiff in the execution, and without any sinister motive on the part of the Sheriff, who, by the insolvency of the debtor, will be without remedy for the loss to which he may be subjected, neither appeals to that sense of justice by which ordinary claims between individuals may be tested, nor derives any aid from it. Such an attempt to throw a loss, already incurred by the plaintiff,. upon a party whose omission has neither profited himself nor injured the plaintiff, resting as it does upon the naked letter of the statute, must always encounter a strict construction, both of the statute, the law on which the case is founded, and of the evidence by which it is attempted to be made out.
The statute certainly implies that the execution must have come to hand while it was in force, and that there was reasonable time for action upon it, and the failure to return it, must be “without good cause.” What that cause may be, the statute does not attempt to define, and it must depend upon the circumstances of each case. But it must be some cause, which, affecting either the
These cases seem to establish the principle which is, in effect, declared in the case of Thompson vs Ross, that if the failure to return an execution be occasioned by
It is undoubtedly a high policy of the -law to compel diligence and punctuality in the performance of the duties attached to the office of Sheriff, and especially of this duty of returning executions; and as the enforcing of punctuality in returning executions is a most efficient means of insuring diligence in acting upon them, and punctuality and fidelity in paying over what may be made, it may be presumed that the attainment of these objects was the principal motive for denouncing the heavy penalty against a failure to return an execution. But it is contrary to the policy as well as the justice of the law, that the judgment creditors of insolvent debtors, utterly hopeless of making their debts in that direct mode which it is the object of this statute to render efficient, should be encouraged or permitted to calculate upon the inadvertences to which the infirmities of human nature may subject any individual of ordinary prudence, as a regular mode of making themselves whole at the cost -of the Sheriff. And we deem it to be not only consistent with the true spirit of this statute, but essential to its proper administration, to guard it against the perversion to which it must be subject, if it were allowed such an operation as might induce creditors, in cases otherwise hopeless, to speculate upon the liabilities which it imposes on Sheriffs. When, therefore, in such cases, it appears that the creditor has so acted as to lull the vigilance of the Sheriff, or to throw him off his .guard in any degree, with respect to his legal-duties and responsibilities, we are clearly of opinion that he thereby furnishes an excuse for any mere inadvertence which,-under this statute, should be regarded as a sufficient causeior a merely inadvertent failure to return an execution. The Sheriff being engaged in numerous transactions, and especially in the execution of numerous precepts requiring diligent punctuality and con-
After these remarks upon the principles which should govern the case, a brief recurrence to the facts, deducible from the evidence, will suffice.
It may, we think, be fairly assumed, that it was understood by all parties, that nothing could be made upon this execution, and that nothing should be done unless Kinkead should be of opinion, upon examination, that the conveyances of Taylor’s property could be successfully attacked, and that Blackburn was not expected to act upon it until advised to do so by Kinkead. And it does- not appear that Blackburn was ever directed after, wards to act upon it, either by the plaintiff or by Kinkead, to whom some control over it was obviously given.
From this failure to urge any proceeding on it, or from the failure of the plaintiffs to answer Kinkead’s letter, the inference fairly arises, that they had no intention that it should be acted on. The refusal of their counsel to permit Kinkead to recur to this letter during his examination as a witness, not only strengthens this' inference against them, but as Kinkead’s recollection was evidently at fault with regard to several minor circumstances, otherwise sufficiently established, this refusal gives rise to
Having based this result as well upon what occurred between the parties on the occasion when the execution was placed in the Sheriff's hands, as upon the known insolvency of Taylor, the ■ hopelessness of making any' thing out of the execution, and the actual unimportance of its being returned, we deem it proper to say, that whatever effect the directions given the Sheriff, and the conversation then had might have been entitled to, if nothing further had occurred between the parties, it is apparent from the bill of exceptions, that it was after this conversation, that upon particular conference with the attorney, the conclusion was adopted by all parties, that nothing could be made out of Taylor unless his conveyances could be set aside as fraudulent, and that unless
With regard to the apparent discrepancy between the statements of Kinkead and young Blackburn, as to the time when ineffectual search was made for the execution, a discrepancy which involves neither the veracity nor character of the witnesses, but merely the accuracy of their recollection as to the time when Kinkead gave instructions for the search. We may further remark, that if it were essential to the result of this case to establish the loss of the execution as the cause of its non-return, and to fix the search within the period in which it might have been returned, we do not know that we could disregard the positive statement of Blackburn, upon whose mind the search itself, as well as the circumstance to which he refers, as enabling him to fix its date were calculated to make a strong impression; and especially, when as already intimated, Kinkead seems to have retained a very imperfect recollection of incidental or collateral circumstances. He did not recollect that either Mathews or the deputy j Blackburn, was in his office when he had the interview with Haydon, or that he saw the execution on that occasion.
But the view which has -been taken of the circumstances in the case, dispenses with the necessity of a further analogy of this part of the evidence. And we will only add, that the search made by Kinkead among his own papers, tends to show that there was at the time some impression on his own mind that the execution, over which he certainly had some control, may have been delivered to him either by the plaintiff, Haydon, or by the Sheriff, and this inference, coupling itself with the refusal to permit him to examine his letter written to the plaintiffs in relation to the collection of this debt, seems ■calculated to involve in some doubt the most important
Upon the whole case, therefore, we are of opinion, that if the plaintiffs have sustained any injury from the failure to return the execution in this case, (which however does not now appear,) they should seek a redress commensurate with the injury, for which the law affords them ample remedy. They have not, as we think, made out a case which requires this Court to set the first precedent of adjudging the penalties of this statute, for the non-return of an execution against insolvent debtors.
Wherefore, the judgment is affirmed.