86 N.J. Eq. 76 | New York Court of Chancery | 1916
The original cause, of which this motion is an outbranch, is a maintenance suit brought by the complainant against her husband in which a decree was entered requiring him to pay her the sum of $8 per week for the support of herself and the children. On May 3d, 1915, a writ of ne exeai was issued in the. cause directed to the sheriff of Morris county commanding him in the usual form to cause the defendant, Greisner, to come before him and give bail in the sum of $1,000, and in default thereof to commit him to the common jail of the county. This writ came to the hands of the complainant’s solicitor. He communicated by telephone with the office of the sheriff and requested him to send an officer to Dover to execute the writ which the petitioner’s solicitor would there deliver to him. Neither the sheriff nor the under-sheriff responded to the solicitor’s request, but there was sent to Dover, by someone in the sheriff’s office, a constable named Newkirk, who was in attendance at the sheriff’s office. The solicitor gave the writ to him; he executed it by taking Greisner into custody. The constable then took him to Morristown and delivered him to the sheriff, who accepted the delivery and who confined him, in so far as he was confined at all, to the common jail of the county, in default of the bail demanded.
It is alleged that the sheriff having accepted the custody of the defendant was under the duty of keeping him actually confined in the common jail, and that on his failure to do so he permitted an escape for which he is liable to process of contempt. Newkirk was not especially deputized, in writing, to serve the writ, neither was he an under-sheriff capable of executing the same without such special deputization. It was held, by the court of errors and appeals in Meyer v. Patterson, 28 N. J. Eq. 239, that it was unlawful for the sheriff to appoint a special deputy pro hac vice by parol, but that, on the contrary thereof, all such' deputizations must be in writing. Yet, it was further held, in the opinion in that ease, that a person who held himself out as a sheriff’s deputy, apparently clothed with the right to execute the writ of the court, assumes the function not of a private but of a public office, and that when it clearly ap
While the defendant was so in custody of the sheriff proceedings were taken against him for contempt in not obeying the directions of the order of the court of chancery to pay his wife and children $8 per week. These proceedings resulted in a writ of commitment against Greisner for contempt, and this writ was mailed by the petitioner’s solicitor to the sheriff at Morristown, but no fees were enclosed for its service. The petitioner’s solicitor was promptly notified that the fees must be .paid before the service would be made, it being claimed by the petitioner’s solicitor that the sheriff hqd overcharged him for service of the writ of ne exeat, and that there remained in the hands of the sheriff sufficient moneys to pay the lawful fee for executing the commitment. This question I do not propose to decide any further than to say that I am unwilling to visit upon the sheriff so large and. ample a punishment as an adjudication for contempt which depends for its foundation upon a controversy between him and the solicitor with regard to the amount of fees that he is entitled to charge for executing a writ; for such cause of action, if any such exists, he may have his remedy in the courts of common law.
The next question is, whether the sheriff having the defendant in custody under the writ of ne exeat permitted him to escape from such custody, and, if so, what consequences arise therefrom ? It was testified to by several witnesses that the do
The authority relied upon by counsel for the motion on this point is People v. Stone, 10 Paige Ch. 606. I fully concur in what the learned chancellor says on the point in his opinion in that case, but it will be- observed that in that ease the question arose out of a committal on final process by way of punishment. In other words, the writ under which the defendant was imprisoned in that case was a punitive writ based upon the final judgment of the court, while, in the ease at hand, the writ is one for appearance only and contains no element of punishment.
There is a wide difference in the results between an escape permitted under final process and an escape permitted under mesne process, for the reason that one is punitive in its nature and the other is issued merely for the purpose of bringing the defendant into court on the return day or at such other time or times as his presence may be required. The writ of ne exeat is, undoubtedly, mesne process. It was held in Adams v. Whitcomb, 46 Vt. 708, that "the writ of ne exeat, as at present used in this country, is a mesne process issuing from the court of
If, therefore, the sheriff shall produce the body of the defendant before the court, whenever the exigency of the suit may demand it, he will be absolved from liability. Otherwise, he must remain' liable to such remedies as the complainant has a right to pursue.
Eor these reasons I have come to the conclusion that the sheriff is not liable in this case to any adjudication of contempt, and I will advise an order dismissing the proceedings, but without costs.