
    *George N. Webb v. Anspach, Brother & Co.
    Ho who would avail Mmself of the remedy of amercement, must bring himself both within the letter and spirit of the law.
    The statute relating to amercements, being part of “ an act regulating judgments and executions,” passed March 1, 1831 (Swan, old ed. 484, sec. 32), expressly required the motion to amerce to be made in open court. Filing a paper in the clerk’s office in vacation was not such motion.
    Any but the slightest variance between the notice of the motion and the'motion motion itself, will be fatal.
    When a sheriff receives money, paid to discharge a levy on personal property after the return or return day of the writ, it may be a question whether his act was legal; but in strictness, such money is certainly not made upon the writ.
    Under th,e statute governing this case, it may be that for a refusal to pay money thus made, there might be an amercement. But if so, it would be by virtue of the general language of the thirty-second section, to wit: "All moneys by Mm collected or received for the use of said party.”
    Where the goods levied on were sold under an agreement of the parties, and in a mode wholly unknown to the due execution of a fieri facias, the parties can not hold the sheriff officially responsible, and thereby charge his sureties, as well as himself, with his defaults. For his sureties may be made parties to a judgment of amercement, and'upon a scire facias for that purpose, they are not permitted to set up as a defense any matter that occurred previous to the entering of the judgment. And this is an additional reason to those stated by Hitchcock, J., in Duncan «. Drakely, 10 Ohio, 47, why proceedings to amerce an officer are strictissimi juris. I't is- enough for sureties to be liable when the due execution of process is not interfered with by the party who complains.
    Certiorari. The cause was reserved in the district court of Tusjoarawas county.
    The original cause was on a motion to amerce George N. Webb, rsheriff of Stark county, in the common pleas of Tuscarawas county. 'The motion to amerce was filed on the 25th of March, 1850, and •was as follows : Plaintiffs represent to the court that at the August ¡term, a. d. 1848, of the court aforesaid, they recovered a judgment against Alexander Garnier, for the sum of two thousand four hundred .•and fifteen dollars and forty-eight cents, as will more fully appear .523] by the records of said court; that upon said ^judgment an .execution was issued by the clerk of the said court, on the 26th day of August, a. d. 1848, directed to the sheriff of said Stark (County, commanding him to cause to be levied of the goods and (Chattels in his bailiwick, of the said Alexander Garnier, said sum .of money; and for want of goods and chattels that he cause the ¡same to be levied of the lands and tenements in said bailiwick, of •said Garnier, and to have said money before said court of common pleas on the first day of their next term, to render unto the said jplaintiffs, and to have then and there this writ; which said execution was received by said George N. Webb, who was then sheriff of said county of Stark, on the 30th day of August, 1848; that said (George N. Webb, after receiving said execution, received the full ¡amount of money specified in said execution by virtue thereof, and ithat ¡afterward, to wit, on the first day of April, 1849, and on the first day of May, 1849, and on divers days between the said first day of May and the first day of March, 1850, the plaintiffs, by their legally appointed agent and attorney, and by Lewis Schcefer, their attorney of record, demanded of said Webb said money by him collected on said execution, which he refused to pay over, and ever since, hitherto has neglected and refused, and still does neglect to pay over. The plaintiffs therefore pray that said George N. Webb, for his refusal to pay the said money when the same was demanded as aforesaid, may be amerced in the sum due the plaintiffs.
    At the April term, 1850, the cause was continued, and at the foup succeeding terms the cause was further continued. At the November term, 1851, the plaintiff filed the following notice of motion;
    “Geo. W. Webb., Esq, 'Sheriff of Stark County, Ohio:
    
    “ This is to give you notice that on the first day of the next term of the court of common pleas of Tuscarawas county, Ohio, or so soon thereafter as counsel can be heard, we shall move court to amerce you for refusing to pay over, when demanded of you by Lewis Schoefer, our attorney of record, the money made by you on a certain writ of execution to you directed, which came into your hands to be executed in clue form of law, for the sum of two thousand four hundred and thirteen dollars and five cents debt, one dollar damages, and *one dollar and forty-three cents costs; [524 making in the aggregate two thousand four hundred and fifteen dollars and fifty-eight cents, tested the 26th day of August, 1848, and issued at our instance from the clerk’s office of said Tuscarawas court of common pleas against Alexander Gamier, upon a certain judgment of the said court in that behalf, rendered at the August term thereof, a. d. 1848, against said Gamier, in our favor.
    “John Anspach,
    “ William Anspach, “Jacob Jacoby,
    
      “Partners by the name of Anspach, Brother & Co.' “By Lewis Schcefer, their attorney.”
    
    This notice, the motion filed in the clerk’s office, and the writ Of a. fa. against Gamier, describe the persons composing the firm of Anspach, Brother & Co., as above, John Anspach, William Anspach, and Jacob Jacoby.
    
    At the same term (Nov. 1851), appeared in open court, the plaintiffs, John Anspach, and Jacob Jacobs, partners, etc., by Gris-wold and Bingham, their attorneys, and moved the court for a judgment of amercement against the said George N. Webb, late' sheriff of the county of Stark, for refusing to pay, etc., and there-' upon the court amerced the defendant in the sum of $2,368, and $236.80, being ten per cent, penalty thereon.
    Another variance is, that the motion filed, and notice, are for not paying money received on an execution issued on a judgment in an action of debt, for $2,413.05 debt, $1 damages, and $1.43 costs, making in the aggregate $2,415.48; and the writ given in evidence corresponds. But 'the motion,at the November term, 1851, upon which judgment was given, describes the writ as issued upon a judgment in another form of action, for $2,413.05 damages, and $2.43 costs.
    The motion filed in the clerk’s office is for not paying over the whole amount of the execution; the motion of November term, upon which judgment was given, is for not paying over a part of that amount.
    From the bill of exceptions, it appears that on the trial, Sehoefer, attorney "for plaintiffs, testified that about the 29th or 30th of 525] August, 1848, the defendant received the execution *of the plaintiffs against Alexander Gamier; and a day or two afterward, he told witness that he had levied it on the goods in controversy. Upon these goods there was already a levy in favor of Walter F. Stone, for $5,330, on a writ against Gamier from Summit county, which was levied on the 24th of July, 1848. The goods thus levied on amounted, by invoice, to about $7,200. That the goods were sold by the sheriff, partly by private sale and partly by public sale, by arrangement with Gamier, to which the plaintiff in execution assented. That the sheriff commenced selling about the 1st of August, 1848, at private sale, and continued until the latter part of December following. That the sales were then suspended until about the middle of February, 1849, when the balance of the goods were sold at auction during the course of a few days. That the sheriff had the custody and control of the goods; and that he had a bond of indemnity made to him before he would levy the Stone execution; and that he made the sale at auction by his deputy. That the witness was attorney of record in both the executions, and. that he assisted at the sale of the goods. That there was an arrangement between the plaintiffs, that if the goods did not bring enough, the money should be applied pro rata, otherwise they should be paid in order-. In April, 1849, witness demanded the money of the sheriff; and in the fall of 1849 he told witness that he would not pay the balance over until the suit of Brown & Co., in trespass against him for the goods, was decided.
    It further appeared that no vendis were issued, and that no return was ever made to the writs. There was some discrepancy as to whether the sales were made under the supervision and management of the plaintiff’s attorneys. It appeared, however, that Schcefer, who was attorney of record for Anspach, Brother & Co., took a more active part in making sales than the sheriff. The gross amount of sales was about $6,200; nearly enough to satisfy both executions. Out of this money the Stone execution was satisfied, and the residue the sheriff retained until the action of Brown Co. should be determined. It does not appear that Webb [526 was indemnified by Anspach, Brother & Co. Nor does it appear that before the return day of Anspach, Brother & Co.’s writ, the proceeds of the sales exceeded the amount of the Stone execution.
    
      M. Birchard, for plaintiff in certiorari.
    
      J. A. Bingham, Griswold & Shcefer, for defendant.
   Thurman, C. J.

The judgment must be reversed, for the following reasons:

I. The notice contemplated a motion to amerce to be made at the term next after it was served. But no motion was made at that term. Filing a paper in the clerk’s office in vacation was not a motion. The statute expressly required the motion to be made “in open court.” (Swan’s Stat. old ed. 484, sec, 32.) It was not until the sixth term after the notice was given, and after a lapse of twenty months that such a motion was made.

II. The motion made in court was variant from the notice and unsupported by the execution given in evidence.

III. The motion was for refusing to pay money made upon the execution. But the money was not so made. First, because it was made after the writ had become functus officio, to wit: after the.return day thereof. Possibly a sheriff may receive money, in discharge of a levy on personal property, after the return, or return day of the writ. But if he can, which we neither affirm nor deny, yet, in strictness, such money is not made upon the writ. Under the statute that governs this ease, it may be that for a refusal to pay money thus made, there might have been an amercement. But if so, it would have been by virtue of the general language of the thirty-second section, to wit: “ All moneys by him collected or received for the nse of said party.” A question is made, whether this section covers the case of a writ sent from one county to another, since that case is expressly provided for in a separate section, the thirty-fourth. But it matters not to which section the present 527] ^proceeding is referred, for the notice and motion clearly confine it to money received upon the execution; and it was not so received. Secondly, the goods were sold under an agreement of the parties, and in a mode wholly unknown to the due execution of a fieri facias. Now we do not think that the parties to an execution can turn a sheriff into a merchant, with a corps of unofficial bookkeepers and clerks, to keep a retail store for months, and sell at private sale as well as at auction, and upon credit as well as for cash, and when ho has complied with their wishes turn him back into a sheriff, and hold him officially responsible, and thereby charge his sureties as well as himself with his defaults; for his sureties may be made parties to a judgment of amercement, and upon a scire facias for that purpose, they are not permitted to set up as a ’defense any matter that occurred previous to the entering of the judgment. Swan’s Stat. (old ed.) 485, sec. 37. And this is an additional reason to those stated by Judge Hitchcock in Duncan v. Drakely, 10 Ohio, 47, 48, why proceedings to amorce an officer are strictissimi juris. It is enough for sureties to be liable when the due execution of process is not interfered with by the party who complains. It would be very unsafe if not unjust to let their liability be increased by private arrangements changing the due course of the law. For these reasons, as well as for those stated by the eminent judge above named, we fully agree with him that he who would avail himself of the remedy of amercement, “must bring himself both within the letter and spirit of the law.” But neither letter nor spirit, in our opinion, sustains the judgment in this case.

’ Another point is urged with much force by the counsel for the plaintiff. He contends that a motion to amerce for not paying money made upon an execution, can not be sustained unless the execution has been returned. This proposition derives some support from the case of Dawson v. Holcomb, 1 Ohio, 275, and the provisions of the statute authorizing an amercement for failure to return a writ; but we are not prepared to express our opinion upon it, nor is it necessary to do so, the views already stated disposing of the case.  