Reed v. Pruyn & Staats — 7 Johns. 426

Majority

p. 426

Reed against Pruyn & Staats.

ALBANY,

Feb. 1811.

Headnote

A sheriff eamsot with his own money pay the plaintiff on an execution, and afterwards levy the execution out of the 1)1'~-perty of the dcfendant; nor can he take a bond or other security, and detain the cxccution in his hands, and use it afterwards to enforce the payBient of the money advanced by him.

SUDAM and Benson, for the defet~dants, moved, at the last term, to set aside the execution in this `cause. The affidavit of Staats, which was read, stated, that a judgment was entered up in Augu.~t, 1808, against the defendant Staat8, in favour of the plaintiff, on which a , Ca. .sa. for'436 dollars and 60 cents was issued to the sheriff of Columbia. Staats was taken by a deputy sheriff on the e~ecution and discharged, on his procuring Fruyn, the other defendant, to join in the executIon of a bond and warrant of attorney, as security, and judgment was entered up thereon, in favour of the plaintiff against the defendants. About 7 or 8 days thereafter, Henry Van S1yc~, the deputy sheriff called on Staat~, ~nd informed him he had a Ca. .s'a. issued on the last judgment, and offered to lend th~ money to hhxi to dis

p. 427

charge the ca. sa. if Staats could procure a note,drawn by Pruyn, and endorsed by Siaats, payable at the Hudson bank, for about 560 dollars Staats and Pruyn afterwards called on the deputy sheriff, who drew a note for 563 dollars, payable to Staats or order, at the bank of Hudson, 55 days after date, dated November 3, 1808, which was accordingly signed by Pruyn, and endorsed by Staats. The deputy told the defendants he had a ca. sa. against them, at the suit of the plaintiff; and being requested to produce it after the note was given, he showed a ji. fa.; and the defendants expressed their dissatisfaction at his conduct, and demanded a discharge pf the execution. The deputy sheriff gave them a receipt, stating that he had received 495 dollars and 87 cents, with the sheriff’s fees, in full of the execution against the defendants, at the suit of the plaintiff in this cause. On the 1st of May, 1809, Staats paid thq deputy 50 dollars, on account of the note. He after-wards applied to the plaintiff, to enter up satisfaction on the judgment, who informed him that he never had any judgment against the defendants, in this suit, and that he had received his money on the judgment against Staats Pruyn died in September, 1810, and in October the deputy sheriff advertised the personal property of Pruyn and Staats for sale, on the execution in this cause. On the 2d of October, 1810, the deputy requested Staats to give a bond and warrant of attorney for the amount of the note, and that he would pay off the executions he held against Staats, and would give the defendant 2 or 3 years to pay the judgment, alleging that he had lent the defendant money to pay off the judgment of the plaintiff.

It appeared from a certificate of the attorneys of the plaintiff, in the suit of Peed against Staats, that an execution was issued the 20th of October, 1808, to the sheriff of Columbia, for 436 dollars and 6Q cents, debt and

p. 428

costs, and that they had received the said sum in full of damages and costs, besides the sheriff's fees.

Sudam cited 19 Vin. Abr. 435. § 6. 1 Lutw. 589. Noy, 107.

Van Buren and B. Williams, contra,

read the affidavit of Henry Van Slyck, the deputy,- stating that he received the fi. fa. against the defendants in this cause the 30th of October, 1810, for 494 dollars and 37 cents; that he called on the defendant Staats, who said he could not raise the money, and applied to the deponent to lend v it; that he agreed to advance the money and take a note, which, it was supposed, could be discounted at the Hudson bank, and the deponent gave" a check on the bank, in that expectation, to the defendant. But the note was never discounted; and after it became due, no notice was given to the endorsor, so that he became discharged; and Pruyn refused to pay the note. That on the repeated promises of xStaats that the deponent should be paid, all proceedings were delayed until he advertised the property. That he never had a ca. sa. against the defendants, and he showed" them the Ji. fa. before the note was given.

delivered the opinion of the court. The execution, against which the defendant Staats prays to be relieved, ought to be considered as satisfied and discharged. The deputy sheriff who had the execution, instead of executing it according to law, discharged it himself out of his own money, on taking a note drawn by one defendant, and endorsed by the other, payable at the bank of Hudson in 55 days. This he did as early as November, 1808, and gáve the defendants under his own hand an acknowledgment of having received the full amount of the execution. The note not being "paid, and having neglected to fix the endorsor by the

p. 429

requisite notice, the deputy sheriff now proceeds to indemnify himself, by putting the execution in force, which had slept quietly for two years. Such, management of the process of execution, by the officer, is not to be permitted. It is liable to infinite abuse and oppression. The law has long since, and v.ery wisely, guarded against such application of its process. In Waller v. Weedale, (Noy, 107.) it was laid down by the C. B. that the sheriff on ji.fa. cannot detain the goods taken upon an execution in his own hands, and satisfy, the debt of his own proper money, for “ a grand inconvenience would ensue, if the sheriff himself might detain them.” This case received strength and credit in Langdon v. Wallis, (1 Lutw. 589.) when it was cited as good law by such counsel as Serjeants Wright and Lutroyche. It was there observed, that the law requires of sheriffs a strict execution and observance of writs, as their authority was to sell the goods, and the doctrine appeared to be approved by the decision of the court.

It was once moved as a question by Lord Hobart, in Speake v. Richards, (Hob. 206.) whether, if the sheriff on execution pay the plaintiff with his own money, he might afterwards levy the money of the defendant. But this point, if not essentially involved in the decision in Noy, seems to be embraced by the decision in the K. B. jn Ward v. Hauchel, where it was agreed by the court, that if the sheriff takes a bond from the party, on fi. fa., it was pleadable in bar of a new execution, and the court referred to a case in which such a plea had been adjudged good. (1 Keb. 551.) This authority clearly applies to the present case. The sheriff must look to his note; and it would be oppressive to allow him to keep an execution alive over the party, after having formally paid it himself, arid accepted of a note as his 'own security.

p. 430

The practice of sheriffs of paying executions themselves, and taking security and judgment bonds from the party over whom they have at the time such means of coercion, is to be strictly and vigilantly watched by the courts. Such humanity is imposing, but it may be turned into cruelty. Nothing is more important to the honour of the administration of justice, than that the officers of the court should not use its process as the means of making unequal bargains, and taking undue advantage. The facts in this case have the appearance of an instance of gross abuse. The whole debt, costs, and poundage, that the defendant Staats was originally bound to pay on the ca sa. issued in favour of the plaintiff in October, could not exceed 445 • dollars. He gave a judgment bond with surety for the amount of that execution, and immediately another execution issued against him and the surety for 494 dollars and 37 cents ;' whereas the costs of entering up the judgment bond could not have been more than lti dollars. On this second execution he gave a note for 560 dollars. Here is, then, by this management of taking a judgment bond to meet the first execution, and of taking a note to meet the* second execution, an accumulation of debt to more than 100 dollars beyond any estimate that I can possibly make of legal charges; an4 this enormous extra accumulation of charge upon this oppressed defendant, accrued within the short space of ten days. Such conduct is not to be sanctioned or endured.

I am happy, therefore, that Van Slyck, the deputy sheriff, will be driven to seek his remedy upon the note, when the legality of this increase of the original debt, will be open to further investigation.

The court are of opinion that this motion to set aside , the execution be granted, with costs, to be paid by Henry. Van Slyck the deputy sheriff.

Motion granted.