The opinion of the court was delivered by
Huston, J.
The plaintiff gave in evidence the docket of Justice Boyle of Carlisle-, containing the record of a domestic attachment, at the suit of Alexander Barr against John Hamilton an absconding debtor. It was issued on the oath of Barr, stating that Hamilton had absconded, &c. &c. six days, on this affidavit, made 9 th March, 1819, the writ of attachment-issued the same day, directed to Richard Miles, deputy constable of Carlisle. Richard Miles was a general deputy of the constable of Carlisle, duly appointed and approved by the court — this writ was executed on the 10th of March, 1819, and goods in West Pennsborough township were attached.
The defendant gave in evidence the record of an-action before John Heap, Esquire, at the suit of Isaiah Graham against John Hamilton, and four other suits before the same justice against the Same- defendant, commenced the 5th of March, 1819, on all of which judgments were entered the 9th of March, 1819, and executions issued the same day and directed to the defendant, who levied, on the same 9th of March, on the goods which, on the next day, Miles, constable of Carlisle, laid the attachment. Constable Miller advertised and sold the goods on the 16th of March, and paid the amount of sales, (about one hundred and.four dollars,) towards satisfying the debt and costs due on the executions in his hands. Constable Miller, when -he made the levy, endorsed on the execution of Graham the schedule of the propei’ty levied on; he did not endorse it on the others; but it was in proof he had the others in his hand, and got them ail at the same time.
Many propositions of lav/, were submitted to the court by the counsel on each side, and answered by the court, ana every one was discussed here, with some zeal. I shall only notice such of them as are necessary to decide the cause,
[234]*234It was contended, that because Miller had not endorsed a list of the goods levied on each execution, and in fact had not endorsed it on any but one, therefore, he could only retain for the amount of that one execution. The endorsement on the execution is not the levy, but one of the evidences of it. The schedule of property was levied on, if the articles are numerate, are seldom written, in th‘e first instance, on the execution. The sheriff tells the defendant, I levy on such articles, specifying them; and after this puts the list in writing, generally before leaving the ground.
A sheriff having two or more executions in his hands, seizes goods: this is the levy: he endorses a list of the goods on one of the executions, or, more generally, on a separate paper: this is good for all; he is not required to make a separate schedule for each: he seldom annexes the list'to any execution until he is making his re-' turn, and then annexes it to one and refers to it in the return to the others: — so he may make the list on one execution and refer to it in his' return on the others; and the return is never written on the others, until the return day. I do not say this is the most correct course for a sheriff, but it is so universal and without exception, that I can not say it is bad. The levy, however, all this time, is on all the executions, if St was so made, and so expressed to be at the time it was'made; add whether it is so or not, is a fact, and was so left by the court, who told the' jury, a levy was indispensable. But executions in the constable’s hands and a levy made before the attachment was executed, would bar the plaintiff’s recovery.
It was next contended, that the right to the goods was in' the trustees, as soon as they were appointed; dnd by relation, this right commenced at the time the attachment issued. This is so, expressly in the case of an attachment issued Out of the Court of Common Pleas, (unless in certain excepted cases,) but it is made so by express enactment: and I am not aware that, at present, we have any case in which any person has, by relation, a right to the property of goods before the act which vested them in him, took place, unless such right is given by express legislative enactment. In the act about attachments to be granted by Justices of the Peace, there is nothing vesting the property in the trustees, before their' appointment, which is to be after the return’ of the attachment pro-cess. But many things, in fact every thing in the law, indicates a contrary intention.
The executions, then, being levied before the attachment was executed, and the goods sold on the levy, the plaintiffs, who were not appointed trustees till several days after the levy, cannot take them.
But it was said these judgments were fraudulent, in this at least, that the several plaintiffs knew that John Hamilton had abscond[235]*235ed, and that a summons taken out with such knowledge and served by leaving a copy with his wife at his house, was a fraud on other creditors: — that those plaintiffs who (hen got execution and obtained their debts, must give up the money when an attachment was subsequently taken out. In the.first place, there was no evidence that Hamilton had absconded when the several plaintiffs sued him, except the affidavit of Barr, filed with the justice,1 when he got his attachment: — .and although that was sufficient to obtain his writ, it is no evidence in this casé against this defendant. Our law expressly authorises process to appear and answer, to be served by leaving a copy at the defendant’s house with his family; and a judgment obtained on prpcess so served, is in all respects regular; at lgast, until something is proved which will avoid it. But however this might be the subject of inquiry, if this suit had been against the plaintiffs in those suits, it was not offered to be proved, that the defendant knew any thing of it. He was bound tp execute the executions put into his hands.. By the act of 21st March, 1772, no suit is to be instituted against a constable for any thing done in obedience to a warrant under the hand and seal of a justice, until demand in person or by written notice, &e. of a copy of his warrant, and refusal for' six days'to give such copy; and if suit is brought against such constable without joining the justice, or against thp constable and justice, the constable who produces at the trial and proves such warrant, under the hand and seal of a justice, shall have a verdict in his favour, whether the justice has jurisdiction or not. I am aware the protection given by this act, has been greatly curtailed by some decisions which would confine it to actions sounding in tort, or to suits brought by defendants, whose goods are taken under process; but in cases where the justice has jurisdiction, and his process is regular, even without the protection of this act, a constable would, I apprehend, be safe from the imputation arising from fraud in the plaintiff in the spit, If the goods taken were not the property of Hamilton,
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the court was delivered by
Huston, J.
The plaintiff gave in evidence the docket of Justice Boyle of Carlisle-, containing the record of a domestic attachment, at the suit of Alexander Barr against John Hamilton an absconding debtor. It was issued on the oath of Barr, stating that Hamilton had absconded, &c. &c. six days, on this affidavit, made 9 th March, 1819, the writ of attachment-issued the same day, directed to Richard Miles, deputy constable of Carlisle. Richard Miles was a general deputy of the constable of Carlisle, duly appointed and approved by the court — this writ was executed on the 10th of March, 1819, and goods in West Pennsborough township were attached.
The defendant gave in evidence the record of an-action before John Heap, Esquire, at the suit of Isaiah Graham against John Hamilton, and four other suits before the same justice against the Same- defendant, commenced the 5th of March, 1819, on all of which judgments were entered the 9th of March, 1819, and executions issued the same day and directed to the defendant, who levied, on the same 9th of March, on the goods which, on the next day, Miles, constable of Carlisle, laid the attachment. Constable Miller advertised and sold the goods on the 16th of March, and paid the amount of sales, (about one hundred and.four dollars,) towards satisfying the debt and costs due on the executions in his hands. Constable Miller, when -he made the levy, endorsed on the execution of Graham the schedule of the propei’ty levied on; he did not endorse it on the others; but it was in proof he had the others in his hand, and got them ail at the same time.
Many propositions of lav/, were submitted to the court by the counsel on each side, and answered by the court, ana every one was discussed here, with some zeal. I shall only notice such of them as are necessary to decide the cause,
[234]*234It was contended, that because Miller had not endorsed a list of the goods levied on each execution, and in fact had not endorsed it on any but one, therefore, he could only retain for the amount of that one execution. The endorsement on the execution is not the levy, but one of the evidences of it. The schedule of property was levied on, if the articles are numerate, are seldom written, in th‘e first instance, on the execution. The sheriff tells the defendant, I levy on such articles, specifying them; and after this puts the list in writing, generally before leaving the ground.
A sheriff having two or more executions in his hands, seizes goods: this is the levy: he endorses a list of the goods on one of the executions, or, more generally, on a separate paper: this is good for all; he is not required to make a separate schedule for each: he seldom annexes the list'to any execution until he is making his re-' turn, and then annexes it to one and refers to it in the return to the others: — so he may make the list on one execution and refer to it in his' return on the others; and the return is never written on the others, until the return day. I do not say this is the most correct course for a sheriff, but it is so universal and without exception, that I can not say it is bad. The levy, however, all this time, is on all the executions, if St was so made, and so expressed to be at the time it was'made; add whether it is so or not, is a fact, and was so left by the court, who told the' jury, a levy was indispensable. But executions in the constable’s hands and a levy made before the attachment was executed, would bar the plaintiff’s recovery.
It was next contended, that the right to the goods was in' the trustees, as soon as they were appointed; dnd by relation, this right commenced at the time the attachment issued. This is so, expressly in the case of an attachment issued Out of the Court of Common Pleas, (unless in certain excepted cases,) but it is made so by express enactment: and I am not aware that, at present, we have any case in which any person has, by relation, a right to the property of goods before the act which vested them in him, took place, unless such right is given by express legislative enactment. In the act about attachments to be granted by Justices of the Peace, there is nothing vesting the property in the trustees, before their' appointment, which is to be after the return’ of the attachment pro-cess. But many things, in fact every thing in the law, indicates a contrary intention.
The executions, then, being levied before the attachment was executed, and the goods sold on the levy, the plaintiffs, who were not appointed trustees till several days after the levy, cannot take them.
But it was said these judgments were fraudulent, in this at least, that the several plaintiffs knew that John Hamilton had abscond[235]*235ed, and that a summons taken out with such knowledge and served by leaving a copy with his wife at his house, was a fraud on other creditors: — that those plaintiffs who (hen got execution and obtained their debts, must give up the money when an attachment was subsequently taken out. In the.first place, there was no evidence that Hamilton had absconded when the several plaintiffs sued him, except the affidavit of Barr, filed with the justice,1 when he got his attachment: — .and although that was sufficient to obtain his writ, it is no evidence in this casé against this defendant. Our law expressly authorises process to appear and answer, to be served by leaving a copy at the defendant’s house with his family; and a judgment obtained on prpcess so served, is in all respects regular; at lgast, until something is proved which will avoid it. But however this might be the subject of inquiry, if this suit had been against the plaintiffs in those suits, it was not offered to be proved, that the defendant knew any thing of it. He was bound tp execute the executions put into his hands.. By the act of 21st March, 1772, no suit is to be instituted against a constable for any thing done in obedience to a warrant under the hand and seal of a justice, until demand in person or by written notice, &e. of a copy of his warrant, and refusal for' six days'to give such copy; and if suit is brought against such constable without joining the justice, or against thp constable and justice, the constable who produces at the trial and proves such warrant, under the hand and seal of a justice, shall have a verdict in his favour, whether the justice has jurisdiction or not. I am aware the protection given by this act, has been greatly curtailed by some decisions which would confine it to actions sounding in tort, or to suits brought by defendants, whose goods are taken under process; but in cases where the justice has jurisdiction, and his process is regular, even without the protection of this act, a constable would, I apprehend, be safe from the imputation arising from fraud in the plaintiff in the spit, If the goods taken were not the property of Hamilton, and the constable levied on goods of a third person, it might he one thing — if the constable were even bound tp look at the judgment, which he is not, and it appeared regular on the face of it, and the execution was regular^ I know of no authority which will justify a suit against a constable who executes an execution in such' case, bpeause the defendant alleges he can prove by something extrinsic the record, that the plaintiff ought not to recover — nor can I find any principle which would justify it — it would be subjecting one man to pay money, or costs at least, for the fault of another, and that, when he not only did not know of such fault, but might never have heard of it until too late.
By án act of assembly, the constable is liable to a suit and very summary'prppeedings, if he does not produce the plaintiff’s receipt, [236]*236orthe money, or some other sufficient'return on the return day of his execution. The record of the justice, shews that the plaintiffs were paid, and satisfaction entered; but whether the constable paid the money to the plaintiffs or to the justice and he paid it to theplaintiffs does not appear; nor is there any evidence that the plaintiffs in this suit, gave him notice not to pay it. The only evidence at all referring to this subject, is that of Miles, who says,'that on the day he executed the attachment Miller told him he had l.evied on those goods, and that he was or would be indemnified. The court were right in directing the jury, that in this case, in this suit against Miller, they were not bound to fin'd against him, though they should believe the plaintiffs in the executions had obtained their judgment unfairly, as it was not alleged that Miller knew of such unfairness, if any existed.
Much was said about the authority of a constable and a deputy constable. I see no reason why a constable, who has according to law appointed a deputy, who has been approved by the court, should not still be constable, and capable to act and • execute process; — nor why a general deputy of a constable, when so appointed, cannot execute one kind of process as well as any other kind. As to the power of-a constable out of his district, or his liability for not executing process out of his district, except where there is no constable in the township, or the constable of the township is. the defendant, or the plaintiff, or a relation of the party or parties —I say nothing. Although it is expected that the process will he executed by a deputy constable, yet it ought to be directed to. the constable of the township.
Judgment affirmed.