
    LOUISA DOUAI WEHLE, Plaintiff and Respondent, v. WILLIAM C. CONNER, Sheriff, &c., Defendant and Appellant.
    EXECUTION, RETURN OF.—SHERIFF’S DUTY.
    On the 6th of October, 1874, the sheriff, defendant, received three executions in favor of plaintiff. On the 7th of October, 1874, the defendant made a levy upon property of the judgment debtor named in said executions, sufficient to satisfy the same, yet made no return upon said executions, and the action at bar was brought to recover damages for such non-return.
    On the trial, the defendant proved as a defense, substantially, that six weeks after the issue of these executions, and on the 19th of November, 1874, and after he had made the levy aforesaid, the debtors therein named, commenced an action against the plaintiff, and two other persons also commenced two several actions against plaintiff, and in each of said actions, warrants of attachment were issued against the property of the plaintiff to the defendant as sheriff, and he served copies of the same upon the judgment debtors, named in the executions, with the usual notice thereon; that said defendant received from such judgment debtors, a certificate to each warrant, to the effect that they were indebted to the plaintiff in the amount of the three judgments, the executions upon which, the defendant as sheriff then held, and with which he had made a levy upon the property of said judgment debtors. Upon these facts the defendant claimed that he was excused for the omission to return the executions, or that the plaintiff" was only entitled to judgment for nominal damages.
    
      Held by the court, that these facts constituted no defense on the part of the sheriff to the action, and afforded no excuse for the omission on his part to return said executions. Held also, that these facts did not establish the conclusion of law that the plaintiff was only entitled to nominal damages, or that upon the proof of said facts, the defendant should have been allowed to go to the jury on the question of damages.
    This case has been substantially decided in this court, and in the court of appeals, on a motion of the defendant to amend his answer, and to plead these facts as a defense (40 Superior Gt. Bep. 24J. The opinion of the court in the case at bar, refers to and gives extracts from the opinion of the court of appeals, in its decision of the appeal of that motion in regard to the duties of the defendant in the premises, and concludes substantially thereupon, that the defendant had no reason to consider how his duty in respect to the executions in question was affected by the issue of the attachmerts to him, until after be had returned the executions, and had the money thereupon to pay to the plaintiff. His duty was plainly to go on and make the money on the executions, and return the same. Any other view would be inconsistent with well established legal principles and rules. The facts present no features analogous to those cases, where the courts have so far relaxed the rule, so as to allow a sheriff to reduce the damages by proof that the judgment debtor had no property from which the execution could have been made.
    Before Curtis and Sanford, JJ.
    
      Decided, May 1, 1876.
    This is an appeal by the defendant from a judgment for seven thousand five hundred and fifty-eight dollars 'and eighty-five cents, entered upon a verdict directed by the court, in favor of the plaintiff.
    The action is brought against the sheriff to recover damages for the non-return of three executions in favor of the plaintiff. More than twenty days after answering, the sheriff moved for leave to set up as a second defense, that the execution debtors, in an action commenced by them against the plaintiff, and also two other parties in two several actions also commenced by them against this plaintiff, on Nov. 19, 1874 (six weeks after the issuing of the executions in question), caused warrants of attachments under the code to be issued against the property of the plaintiff in this action to the defendant, as such sheriff, copies of which were served upon the judgment debtors, with a notice endorsed thereon that he levied upon and attached all goods, chattels, and credits in their hands, belonging to the said plaintiff, and upon all debts due her from them, and that said sheriff thereafter received from them a certificate under each warrant, showing that they were indebted to the plaintiff in the amount of the three judgments, upon which he had the executions, and that said judgments and each of them, then remained in full force and effect.
    This motion was denied at the special term, on the ground that the proposed answer did not constitute a defense. This order was affirmed at the general term, (40 Sup’r. Ct. 24), and also affirmed by the court of appeals.
    At the trial, the facts proposed to be set up by this amendment of the answer, and other facts, were put in evidence, and the court considering them as not constituting a defense, directed a verdict for the plaintiff. From the judgment entered on this verdict, the defendant now appeals.
    
      Almon Goodwin and A. J. Vanderpoel, for appellant.
    
      Chas. Wehle, for respondent.
   By the Court.—Curtis, J.

The defendant contends that the facts in this case, were only partially disclosed on the motion for leave to set up the attachment proceedings, and on the appeals from the order denying that application. The case now shows, what did not then appear, that on October 7, 1874, the day after receiving the executions, the defendant made a levy on sufficient property of the judgment debtor to cover them. This additional circumstance, fails to make apparent any reason or excuse for the omission by the sheriff to comply with the provision of the statute requiring him to return the execution. In the opinion of Church, Ch. J., in the decision of the court of appeals on the defendant’s motion, the duties of the defendant as sheriff in respect to returning tills execution were strongly intimated in this language : “The sheriff was required by statute to return the execution, and the service of the attachment did not dispense with that duty. There was nothing in the attachment, or the statute relating to that remedy to prevent his levying upon property and making the money upon the execution. If the attachment operated at all upon his duty in respect to the execution, it was as to paying over the money to the plaintiff. The attachment law did not prevent the collection of the execution, and the latter process expressly required it,”

This view seems to leave very little room for the defendant to consider how his duty in respect to the execution is affected b.y the attachments, until after he has returned the executions and has the money thereunder to pay to the plaintiff.

The defendant takes the position, that though the attachments and proceedings under them may not have been a defense to the plaintiff’s action, yet that they constituted proper evidence in mitigation of damages. The case does not show that the attention of the court at the trial was called specifically to this, or that there is an exception to any ruling of the court, in regard to it, unless it comes within the scope of the defendant’s request to the court, to charge that the plaintiff is only entitled to nominal damages, and his exception to the refusal of the court to so charge. But assuming it to be in the case, it is difficult to see how it can be made consistent with any rule as to what may be proved in mitigation of damages. For obvious reasons the courts have jealously defined the bounds of the introduction of this class of evidence. It is never available to excuse bad faith, or wilful or wanton violations of the law. To establish as a precedent, that a sheriff when sued for refusing to return an execution, under which he has made an ample levy and one that fully indemnifies him for any possible liability by reason of such non-return, should be allowed to go to the jury with evidence of this in mitigation of damages, would be inconsistent with well settled principles. Such a case presents no features analogous to those which have induced courts so far to relax the rule, that a sheriff may reduce the measure of damages in an action for non-return, by showing that the judgment debtor had no property out of which the execution could have been made. As to the views advanced in reference to the sheriff being a stakeholder, and that though lie may make the money on an execution the first day it is issued, he has a right to hold it until the sixtieth day, or as to any other right he may have other than to diligently proceed with and return the process, the language of Church, Ch. J., in reference to the sheriff’s conduct with this execution, in the opinion above cited, is relevant: “ It was six weeks after its delivery to Mm before the attachments were served, and then he took the responsibility of keeping the execution and neglected to make any return. The sheriff had no such right of his own motion, and without the direction of the court. Such a course nrght prevent the collection of the execution, and also defeat the benefit of the attachment.”

No question is before us as to the validity of these attachments. If the suits in which, they are issued result adversely to the plaintiffs, or if the defendant gives the undertakings specified by the Code, §§ 140, 141, they are discharged. If they are in force, when the money is ready to be paid to the plaintiff on the executions, then if at all, the attachment operates upon the duty of the sheriff in respect to the executions, and then the court may see fit to stay the proceedings, or to direct the retention of the money in the sheriff’s custody, or to order that it be paid into court, protect ing the rights of all parties until their respective interests are determined.

The question that the plaintiff is estopped by her own acts is raised by the defendant. It is argued, that she having succeeded in getting the injunction restraining proceedings on this execution granted in a suit brought against her by the execution debtors set aside, on the ground that the attachments were a valid lien, she is now estopped from saying that the attachments are of no avail. It is a sufficient answer to this, that the sheriff has not so far proceeded in the discharge of his duty under the execution, as, to be in a position to present any question before the court as to the availability of the attachments. But upon a reference to this answer in the injunction suit, it is not easy to discover wherein the validity of these attachments is asserted. She alleges in regard to them that they were ‘ ‘ wrongfully - and fraudulently applied for and obtained,” and also further alleges, “that the said attachments, as this defendant is advised and believes, are utterly void, and are a part and parcel of the conspiracy between the plaintiffs, and the members of the said other two firms, to cheat, defraud, and ruin her, which said conspiracy was commenced on or about the 8th of December, 1869, by the issuing of the said thirteen attachments out of the said marine court, and was, and is continued by means of said three attachments last above mentioned, and by instituting this suit.”

This answer in the suit (and in which there was judgment for the defendant) does not sustain the theory, that she therein so far elected to treat the attachments as binding, that by such act she constituted against herself an equitable estoppel from claiming the full amount of her execution as the measure of her damages! or from claiming under the circumstances anything more than nominal damages. It is true as claimed, no evidence in respect to this alleged estoppel, was presented to the court when certain questions in this case were passed upon by the general term and the court of appeals, but it affords no ground for any different construction being put upon it,. than that arrived at by the learned judge at the trial.

The point is taken, that the plaintiff commenced her action prematurely, and in violation of the injunction in the suit against her. Even if this was so, it is late at this stage of the controversy, and in this way, for the defendant to set this up. The case discloses the existence of one or two injunctions or stays that were soon vacated, but fails to show any such breach on the plaintiff’s part, as is claimed in consequence of the commencement of this suit. The sheriff being also a party defendant in the injunction suit, if prejudiced, might have applied to the court for its discharge, and insisted upon having a proper undertaking to compensate him for any loss he might thereby be subjected to. It is not consistent with the policy of the law, after this long delay on his part, that one of his co-defendants in such injunction suit should be cut off from her remedy in another action after judgment and execution therein, by reason of his setting up that its commencement was an act of disobedience on her part to such injunction. The claim that the sheriff did not have time to advertise six days, and sell property under the levy, by reason of the injunctions, has to be considered in connection with the fact that the levy was made October 7th, 1874, the day after he received the executions, and that the first injunction was issued on the sixtieth day after such receipt. It is apparent, that he had neglected to proceed under his levy, and neither then, nor afterwards, did he take steps to sell; this neglect, db initio, of duty, does not favor the plea that he was prevented by the injunctions from proceeding. The facts disclosed by the evidence in the case fail to show that the plaintiff was entitled to only nominal damages, or that the defendant should have been allowed to go to the j nry, on the question of da m - ages.

The judgment appealed from, should be affirmed with costs.

Sanford, J., concurred.  