Bowie v. Brahe

2 Abb. Pr. 161, 11 Duer 676

Opinion

Oaeley, Ch. J.

The court will not direct the sheriff in what manner he shall execute process. This is regarded, as an application made with a view to obtain the advice of the court. The court should not advise the sheriff, by ordering him to do particular acts, as being essential and proper in the rightful performance of his duty.

Footnotes

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* Although so ordered, he might be prosecuted for his acts, and the court might be placed in the position of being required to give judgment upon a matter which it had pre-judged without due consideration; and the sheriff might be subjected to damages for obeying an order, and that, too, by the judgment of the court, in obedience to whose order the acts were done.

The sheriff must act, under the advice of his counsel, on his own responsibility, if he should refuse to return the writ, the court would compel him to do it. When he has made a return, if the plaintiff deems it false, he must seek his remedy by action or otherwise, as he may be advised.

The motion must be denied.

Compare Curtis a. Leavitt, 1 Ante 274, in which it was held that a special receiver appointed in the course of an action to take custody of a fund in suit, is an officer of the court, and as such is entitled to the instructions of the court, when the question is what is his duty under the orders made in the cause.