Bayley v. Bates

8 Johns. 185 | N.Y. Sup. Ct. | 1811

Per Curiam.

The question is, whether the defendant was protected under the inquest of office from the charge of a false return. It is found that he procured and conducted the inquest with impartiality and good faith; and it appears that the plaintiff had due notice of it, and that there was not any regular indemnity offered to the sheriff, in case he would sell the negro. If then the return of nulla bona, founded upon an inquest, will in any case be a defence in an action for a false return, notwithstanding that the property of the chattel in question did belong to the defendant in the execution, this would seem to be such a case. .

The general language of the books is, that these inquisitions will excuse the sheriff in his return of nulla bonay and repel the charge of a false return. (Dalton's Sheriff 146. Gilbert's Law of Executions, 21. Tidd's K. B. vol. 2. 922. Grose, J. and Lord Kenyon, in 4 Term Rep. 633. 648. Lord Kenyon, in 6 Term Rep. 88. 7 Term Rep. 177.Impey 's Sheriff, 135. and by the counsel on each side, in Cooper v. Chitty and Blackstone, 1 Burr. 20. Gould, J. in 3 Wils. 309.) There is not any express adjudication upon the point; for the usual course for the. sheriff is to take an indemnity, by bond, from the plaintiff, if the question of property be doubtful or litigated. There are also other ways pointed out in the books, by which the sheriff will, in such cases, be protected from harm. The court will, on application, enlarge the time for making a return, until the right of property be tried between the parties, or the sheriff receive a sufficient indemnity. So, if he sells, the money may be retained in court until the right be ascertained, and the sheriff may even, by filing a bill in chancery, compel the parties to interplead. (1 Keb. 693. 1 Burr. 37. 2 Black. Rep. 1064. 2 Tidd’s K. B. 928. 2 Bay’s Rep. 67.) But, if none of these steps be taken, and the sheriff summons an inquest, and makes a return accordingly, it will protect him, unless there be circumstances in the case to show that he did not act with good faith. If the sheriff should •unreasonably refuse an adequate indemnity, the court would probably hold him bound to proceed and sell, or reject this defence. An action for a false return sounds in tort and'fraud; and it draws into consideration, in a greater or less degree, the quo animo of the defendant.

In the present case, there are no circumstances to de= prive the sheriff of the protection which the inquisition ought to give, and the motion for a new trial is denied.

Motion denied.