Rogers v. McDearmid

7 N.H. 506

• Court: Superior Court of New Hampshire
• Decided: July 15, 1835
• Status: Published

Opinion

Green, J.,

delivered the opinion of the court

On the 2d March, 1833, when the plaintiff delivered his execution to the officer, there was justly due to the plaintiff upon the judgment, including interest, at least $228 56 . and he might have legally enforced the payment of that sum by an action of debt upon the judgment. His right thus to recover that sum is well settled, and is conceded in the argument in this case.

Having a legal claim to recover that amount, the plaintiff placed his execution in the hands of an officer, with directions not to levy the whole amount. While the execution was thus in the hands of the officer, the defendant tendered to the officer $198, in full of the face of the execution and of the officer’s fees, and has brought the sum tendered into court. And the question is, whether this tender is a bar to this action?

On the part of the defendant it is insisted, that when a creditor puts his execution into the hands of an officer, the debtor has a right in all cases to a discharge upon paying tb the officer the face of the execution and the officer’s fees ; and that this right is given to the debtor to secure him against an oppressive and vexatious use of the execution on the part of the creditor. No case has been cited in which such a right has been recognized in any court; but it is insisted that such a right is essential to a debtor in such a case to protect him from oppression ; and if the fact be so, it is without doubt a strong argument in favor of the right.

But ho w is the fact ?

It is well settled, that a sheriff by virtue of an execution can enforce the payment of nothing more than the sums mentioned in the execution and his fees.

It is equally clear, that when a debtor is arrested by virtue of an execution, he is entitled to be discharged upon the payment of the sums mentioned in the execution and the officer’s fees. The precept itself authorizes the detention only till that is done. And when he is once so discharged the execution is satisfied. For if the body of a debtor be once arrested, it is a satisfaction unless he escape. 4 N. H. R. 174, 175.

It is also well settled, that when a sheriff has an execution, with directions to levy the whole amount, or a particular sum, and he seizes goods by virtue of the execution, it is his duty to receive the whole' amount, or the particular sum ordered to be levied, if it be offered by the debtor, and discharge the goods. And if a sheriff, unmindful of his duty in this respect, should retain the goods after such an offer, he would be answerable to the debtor as in other cases for any damage resulting from such breach of duty. •

And when a debtor, against whom there is a judgment, has the money ready and wishes to pay the debt, he should go to the creditor and tender him the amount of the judgment and interest; and if the creditor refuse the tender, when legally made, the debtor has only to keep the money ready, in order to stop the interest. And if the creditor, while the money is so kept read y by the debtor, attempt to vex him with an execution, he will do it at his peril.

The law, then, affords a debtor, who is ready and willing to pay. ample protection against any arrest of his body or seizure of his property. And there is no sound reason why a debtor should have a right in all cases to discharge an execution in the hands of a sheriff, by paying the face of the execution and fees.

An officer derives his authority to arrest the body, or seize the goods of the debtor, from the process committed to him. But it is well settled, that in executing the process he is bound to follow the lawful directions of the creditor. And it is most unquestionably the right of the creditor to direct the officer in what manner and to what extent the execution shall be levied. And the sheriff has no authority to receive any greater sum than what the creditor directs to be levied.

It has been settled in this state, that a creditor who has obtained a judgment has a right to direct a levy of a part only, in order that, he may maintain a suit on the judgment, to compel the payment of interest; and that this right cannot be defeated by a tender of a less sum than the amount of' the judgment and interest. •

A tender then in this case of the sum offered to the-sheriff, if it had been made to the plaintiff, would not have ■ been á bar to the action. :

And, a fortiori, a tender to the sheriff, who had no authority to receive the whole amount of the execution, cannot be a defence in this case, ánd there must be

Judgment on the verdict.