| N.Y. Sup. Ct. | Oct 15, 1823
Two objections are urged against this judgment. 1. The Justice refused to permit Jones to appear for the defendant. 2. The plaintiff was not entitled to the fees claimed.
1. We have frequently decided that a parol authority to appear for a party in a Justice’s Court is sufficient, and that the person offering to appear is a competent witness to prove his own authority. (Tullock v. Cunningham, 1 Cowen, 256.)
2. The second point, however, is the most important, and I am of opinion the Justice erred in awarding to the constable his fees on the execution before he had completed the service. In Hildreth v. Ellice, (1 Cai. Cas., 192" court="N.Y. Sup. Ct." date_filed="1803-08-15" href="https://app.midpage.ai/document/hildreth-v-ellice-5463136?utm_source=webapp" opinion_id="5463136">1 Caines, 192,) the Sheriff had levied on property of the defendant sufficient to satisfy the execution, but before sale the parties settled, and the Court held the Sheriff entitled to his fees. So in Adams v. Hopkins, (5 Johns. 252" court="N.Y. Sup. Ct." date_filed="1810-02-15" href="https://app.midpage.ai/document/adams-v-hopkins-5472506?utm_source=webapp" opinion_id="5472506">5 John. Rep. 252,) where the Sheriff had arrested a defendant upon a ca. sa. and he was afterwards discharged under the insolvent act. In the first case it was owing to the plaintiff’s own act, that the Sheriff did not sell the property and collect the money : in the second, it was owing to the operation of law. The same point was decided in Boswell v. Dingley, (4 Mass. Rep. 413.) It is there said, by Parsons, Ch. J. “ Could the officer have found estate of the debtor, he ought to have levied his fees, and thus have indemnified the defendant.” These cases decide that the officer is entitled to his fees, when by the acts of the plaintiff, or the operation of law, he is prevented from collecting
In Clerk v. Withers, (2 Ld. Raym. 1074,) it was decided by Holt, Ch. J. and the whole Court, that when the Sheriff has levied on sufficient goods of the defendant, the plaintiff has no further remedy; that the Sheriff must proceed and bring the money into Court; even if out of office he must sell the goods; and if he return that the goods remain on his hands pro defeciu emptorum, this is no discharge, but only an excuse to the Court, and he must still go on and sell; even without a venditioni exponas. It is said by Ld. Mansfield, (Cowp. 406,) “ The legal and proper mode of compelling a sale by the Sheriff, when he makes delay or refuses, is by writ of venditioni exponas, upon which he must return the money into Court.” (3 Campb. 524, per Ld. Ellenborough, S. P.) In Leader v. Danvers, (1 B. & P. 359,) the Court refused an attachment against a Sheriff, on a return like the one under consideration, to a venditioni exponas, and said, if the plaintiff was dissatisfied with the return, he might set up a purchaser of the goods himself.
Ate common law, therefore, it seems to be settled, that either on a fi. fa. or vend. exp. it is the duty of the Sheriff to endeavor, to raise the money, by sale of the goods, as well after as before the return that the goods are on hand,. dec., for want of buyers; that such return should be made when the goods cannot be sold unless at a great sacrifice ; and if true it excuses the officer from liability to the plaintiff, and is not a contempt of the Court in neglecting to obey its process.
The conduct of constables, upon process from Justices’ Courts, must be governed by the same law as that of Sheriffs upon process of the higher Courts, when there is no statute regulation. I am aware that the statute requires the constable to levy within 20, and to sell within 30 days; and this Court has decided that unless he do so, he loses his lien. (Brown v. Hotchkiss, 9 Johns. 361" court="N.Y. Sup. Ct." date_filed="1812-10-15" href="https://app.midpage.ai/document/brown--hotchkiss-v-cook-5473116?utm_source=webapp" opinion_id="5473116">9 John. 361. Wylie v. Hyde, 13 Johns. 249" court="N.Y. Sup. Ct." date_filed="1816-05-15" href="https://app.midpage.ai/document/wylie-v-hyde-5473690?utm_source=webapp" opinion_id="5473690">13 John. 249.) But these cases relate to a contest between creditors, for the property of the same debtor. In such cases a grea
Judgment reversed.