1 Blackf. 204 | Ind. | 1822
The plaintiffs below, defendants in error, were execution creditors, for whom, it was said, the sheriff had collected money and neglected to pay it over. The defendant Was one of the sheriff’s sureties. The action was commenced by a notice, under a statute which authorizes such a mode of proceeding against sheriffs and their sureties in certain cases
The overruling of the motion to quash the notice is one of the errors assigned. As contended for by the defendant below, the notice should certainly have alleged, not only that the money had not been paid over- to the plaintiffs or their attorney, but also that it had not been paid into the clerk’s office. The surety is not liable to this kind of proceeding, except where the sheriff has failed to pay in every mode mentioned in the statute. This case may be assimilated to an action on a promise in the disjunctive, as, to pay money or deliver a horse, where the.
It was decided in the Court below, that nq previous demand on the sheriff was necessary for the maintenance of this suit. The general doctrine is, that where it appears by tbe sheriff’s return of the execution that he had levied the money, he is liable to an action for it without any previous demand. 2 Phill. Ev. 225. — Dale v. Birch, 3 Camp. 347. — Longdill v. Jones, 1 Stark. R. 345
The plaintiff in this Court contends, that the statute authorizing this proceeding by notice and motion is unconstitutional and void. The objection to the validity of the act of the legislature, on account of its being limited to a particular class of contracts, seems to be untenable. When a man accepts the office of sheriff, and when his friends bind themselves as sureties for the faithful discharge of his duties, they all know beforehand the consequence of their obligation; and they have no reason to complain of any peculiar remedy, previously established by the policy of the law, for the breach of such particular engagements, merely because it is not exactly the same with the remedy prescribed for violations .of contract in the common transactions of life.
The statute is said to be unconstitutional, because it introduces a new and unusual mode of commencing actions unknown to the common law. We think there is nothing in this objection. The common law of England is not in force in the United Stales as a federal government. In some of the states that law has been adopted by their constitutions, subject however to legisla:
It is contended, that this act of the legislature takes away the-trial by jury, and is therefore void. There are no express words in the act, depriving the parties of their constitutional right of trial by jury; and wo are extremely unwilling to believe, that the representatives of the people could ever have intended to abridge this groat palladium of liberty, so particularly noticed in the declaration of our independence, and so carefully secured by the constitution of the union,, as well as by that of our-own state. If, however, that was their intention, we have only to say that so much of the statute as destroys the common law right of trial by jury in civil cases, where the value in contro-, versy exceéds 20 dollars, must yield to the constitution, as the fundamental and paramount law of the land, which has wisely placed that invaluable right beyond the control of any department of the government. Emmerick v. Harris, 1 Binney, 416. The task is delicate and unpleasant, but the duty of the Court
The plaintiff in error must succeed in this cause. The notice is materially defective, and does not warrant the judgment. It should have described the cause of action with as much certainty and particularity as are required in a declaration; whereas here, the sheriff’s bond upon which the action was founded, "is not described at all, nor is it even stated that the defendant had ever executed it. These are good objections in arrest of judgment, and consequently may be taken advantage of upon a writ of error.
The judgment is reversed, with costs.
Stat. 1807, p. 450; — 1813, p. 106; — 1823, p. 195.
The sheriff having levied an execution, and returned that the money was in his hands subject to the plaintiff’s order, an attachment against him. for non-payment was moved for by the execution creditor. The objection of the sheriff was, that the money had not heen demanded. The Court held, that the sheriff, without any previous demand, should have paid the money to the plaintiff, or into Court; and a rule was granted, that he should forthwith pay to the plaintiff the amount levied, with the costs of the application, or that an attachment should issue against him. Brewster v. Van Ness, 18 Johns, R. 133. Vide Jefferies v. Sheppard, 3 Barn. & Ald. 696; where it is held, that, in an action for money had and received against the sheriff, without any previous demand, for money levied under a fi. fa., the Court will stay the pro-ceedings, upon payment of the sum levied, without costs. Vide also Wilder v. Bailey, 3 Mass. 294, 5.