
    Frederick Wadsworth, Sheriff of Portage County, v. Luther M. Parsons.
    Where, upon ft. fa., sheriff levies upon chattels, and leaves them with the debtor, taking bond for the delivery, and the goods are not delivered, a return of the facts does not excuse the sheriff from liability to the plaintiff upon amercement for the whole debt.
    On motion for amercement of sheriff’, pleadings not necessary.
    This cause was adjourned in the county of Portage, and came before the court upon the following state of facts: Parsons, the defendant in error, had a judgment against Hart et al., on which he caused an execution to be issued, and put into the plaintiff’s hands, as sheriff of Portage county. The plaintiff levied the ft. fa. on a large quantity of ironware. The property was left in the hands of the judgment debtors, and their bonds taken for its delivery. The plaintiff then advertised the property for sale, and afterward called on the judgment debtors, according to the condition of the bond, and in the life of the ft. fa. to redeliver the property, which they did not do. The plaintiff then returned the execution, stating the above facts in his return. The judgment 450] creditor afterward, *at the May term of the common pleas, 1834, moved to amerce the plaintiff for neglecting to serve the execution, according to its command, founding his motion on the above facts, as returned by the plaintiff. The common pleas eustained the motion, and amerced the sheriff in the sum of two thousand nine hundred and forty-six dollars and ninety-three cents, the amount of debt, damages, and costs, and in the further sum of two hundred and ninety-four dollars and sixty-nino cents, being ten percent, penalty thereon and costs of suit. The plaintiff seeks to reverse this judgment, and has assigned for error: 1. That the plaintiff was not liable to be amerced for any of the reasons set forth in the motion. 2. That the court of common pleas amerced the plaintiff, no plea nor answer being filed, nor any issue made up between the parties. 3. The general assignment that the order and judgment of the common pleas should have been for the plaintiff in error.
    
      Newton and Powers, for the plaintiff in error,
    cited 29 Stat. 103, sec. 8.
    Hitchcock, for defendant,
    cited 29 Stat. 109, sec. 32.
   Judge Wood

delivered the opinion of the court:

The statute, under which this motion to amerce the plaintiff was made, is section 32 of the “act regulating judgments and executions.” Its language is this : “ That if any sheriff, or other oB ficer, shall refuse or neglect to execute any writ of execution to him directed, and which has come to his hands, or shall neglect or refuse to sell any goods and chattels, such sheriff or other officer shall, on motion, in open court, and two days’ notice thereof, in writing, to be given such sheriff or other officer by the plaintiff or his attorney, be amerced in the amount of said debt, damages and costs, with ten per centum thereupon, to and for the use of said plaintiff.” The provisions of this section are broad, “ shall neglect or refuse to sell any goods and chattels.” The sheriff levied on goods and chattels by virtue of the execution which was placed in his hands. He neglected to sell the property. The case, then, by the return of the plaintiff in error on the execution, is clearly embraced in the spirit and letter of the statute.

The counsel fbr the plaintiff in error, however, claim that the'facts-Bet up in the plaintiff’s return on the^. fa. “ that he *took [451 a bond for the redelivery of the ironware, that he advertised it for sale, demanded it, and it was not redelivered,” excuse him from liability on a motion to amerce, and leaves the creditor to his. remedy by an action on the case. They cite section 8 of the above act, page 103, in these words : “ That in all case where a sheriff, coroner, or other officer, shall, by virtue of an execution, levy upon any goods and chattels, which shall remain upon his hands, unsold, for want of bidders, for the want of time to advertise and sell, or any other reasonable cause, the sheriff, coroner, or other officer may, for his own security, take .of the defendant a bond, with security, in such sum as he may deem sufficient, conditioned that the said property shall be delivered to the sheriff, coroner, or other officer holding an execution for the sale of the same, at the time and place appointed,” etc.

If there is anything in this section which can operate to excuse the sheriff, a majority of the court are not' able to perceive it. The-.■sheriff is in no case compelled to take a bond for the property. .It is optional with him to do so or not. He may remove it or leave it. The right of possession, the temporary ownership of ;goods and chattels after levy, is in the sheriff. If he leaves them with the judgment debtor, or in the hands of another, and takes the security authorized by law, the sheriff, after demand and refusal to deliver the goods, according to the condition of the bond, may seize the property wherever he can find it, if he can ■do so without a breach of the peace. He may maintain trover ■for it, because he has the right to the possession. The' sheriff, ■then, after having demanded the property, should have taken -it into his possession and sold it, if it were to be found; and whether the judgment debtors, in whose possession it was left, actually redelivered it to the plaintiff or not, and if his return do not show that the propertj was not to be found, was not within his reach or control, the most favorable construction which may be given to section 8 will by no means excuse him. What, then, ds the plaintiff’s return ? That he demanded the ironware at the furnace, where he had advertised it for sale, a.nd it was not delivered;” that it was not to be found;' or that it was not perfectly within his power to take possession of and sell it, is nowhere .stated, nor that its delivery was actually refused, but merely neglected.

But suppose the property was placed beyond the reach of the 452] sheriff, and this was shown by the return, is there any thing*in section 8 of this act to excuse the sheriff from liability on this motion ? The sheriff may take a bond for the property, or he may refuse it. It is at his own will and pleasure; but,- if he can do so, .for what purpose is it done? In the language of the section, “ for his own security.” He must, then, look to the persons to whom he intrusts the property. He leaves it at his peril. If the property is redelivered, it is well; if not, it was his folly to intrust it in such hands, and he is liable on motion to amerce.

The second error assigned is, that no plea or answer is required by the court below to the motion to amerce. Is there anything erroneous in this? In the first place, we know of no practice which requires either plea, or answer, or issue to be made up in form. We have never seen such practice adopted, and there is, in our opinion, no law that requires it; and in the second place, ■the plaintiff in error ought not to be permitted to take any ad ■ vantage of such omission, because it was for his advantage to permit him to appear and urge anything and everything as a defense, without being confined to a single point in a plea, or answer, or issue.

Judgment affirmed.

Judge Wright

dissented:

The bond taken by the sheriff, he was authorized by the statute to take for his own security. 29 Ohio L. 103. Does his doing so, and the failure of the obligor to deliver at the time of sale, subject him to amercement? That appears to me the true question in this case. The proceedings on the amercement are admitted to have been regular, if the case was one for which the sheriff could be amerced. The statute authorizes an amercement of the sheriff in the following eases:

1. Of neglect or refusal to execute the writ of execution; to sell property levied upon; to pay over to the plaintiff, on demand, his debt on the amount made; or to pay over to the defendant, on demand, the surplus, if any.

2. Of mere neglect to call an inquest and return a copy of the appraisement to the clerk: or to return the writ; or to return an inventory of goods levied upon, if the whole debt is not made.

Eor the neglect or refusal to pay over money, the amercement is for the sum withheld, with ten per cent, penalty thereon. *In [453 all the other cases the court has no discretion in the amount, but the amercement is for the whole debt or money due, with ten per cent, penalty thereon, and costs.

The proceeding under this statute is summary and penal, and is not to be extended beyond its letter and spirit. It is intended to induce the officer to an exact performance of his duty; to prevent the interposition of his discretion between the commands of the writ and the law for the ease and favor of the debtor, and to punish in a very summary way neglect and refusal to do his duty. What duty, in the case before us, had the sheriff refused or neglected to perform for which he was amerced? To sell the. iron levied upon and delivered on bond ? He did not refuse to sell. Did he neglect? Neglect supposes some fault in the officer. Was there any fault in this case? The law authorized him to take bond for the delivery of the articles he had levied upon. This he did in good faith. He did not sell, because he had nothing to sell; the goods were removed from his custody according to law, and were at the-time of sale lawfully beyond his control. If replevied, or delivered up on proof of ownership in another than the defendant, they would have been removed from him no more in accordance with law j yet returning these facts could he be amerced? If proceedings are stayed by injunction from chancery, and bond given to abide the decree, the sheriff is directed to repay to the complainant all money made on the execution and not paid over, 29 Ohio L. 89. Would he be liable to amercement if he refused to pay to plaintiff afterward ? That will hardly be claimed; yet he has collected money for the plaintiff, and neglected and refused to pay it over to him; and if he be not excused from amercement because the money has gone from him under the sanction and operation of law, I do not see what protects him against it. On the other hand, if it be that in either of the cases, the officer is exempt from amercement because he has neither neglected nor refused to perform his duty, but only done what bylaw he was'authorized to do, I am unable to find the reason why the principle does not apply to the case under consideration. Suppose the sheriff had the goods at the place of sale, had offered them, and was unable to sell because of no one bidding, has he neglected to effect a sale ? Is he liable to amercement ? The answer is, no. He could not effect a sale according to law, and therefore is not liable to amercement, to pun-454] ishmont as a wrong-doer. It seems *to me these cases depend on analogous principles, if not upon those identically the same, and that the only sensible and just interpretation of the statute is. the one which supposes the officer only liable to this highly penal-proceeding for some neglect or positive breach of duty. The injustice of the construction necessary to sustain the amercement-will appear probable from a single consideration. If the goods levied upon and bonded were bulky, incapable of being reduced •to actual possession, though not of a tenth part the value of the debt, and though the expense of guarding them, or removing them to a place of safety, might exceed by ten-fold their entire value, yet-if bonded, and not delivered at the time of sale, the sheriff would be liable to pay to the plaintiff more than ten times their value, and ten per cent, upon the whole sum. If an execution of a thousand dollars be levied on a stack of hay worth five dollars, which is bonded in case of non-delivery, the sheriff would have to pay, not the five dollars lost, but the eleven hundred dollars! And for this ■he would hardly have day in court; a judgment would go against him on mere motion! It is impossible for me to conceive the legislature ever intended to provide for such a state of things .against any person, and much less to subject a highly responsible public officer to such enormous penalty.

The construction I give the statute can work no injustice to any -one. If the officer neglect or willfully x’efuse to perform his duty in cases where the sum is ascertained, he is liable to the amount and ten per cent, penalty, as punishment for his neglect or wrong ■act. If the amount is not ascertained because of the neglect or refusal of the officer, the whole debt is the proper measure of dam.age, because he whose duty it was to furnish the evidence of the less sum withholds it. If the injury to the plaintiff arise without the fault of the officer, the injured party is left to assert his rights at common law as in other cases of injury. If this remedy is x'e-sorted to, instead of the amercement, the officer can proceed oxx his bond at the same time, and avail himself of the indemnity the law provided for him, by judgment and execution at the same time. If the plaintiff’s right to amerce arises from the mere neglect to ■sell, the payment by the debtor or his security in the forthcoming bond of the full value of the goods bonded, would not exonerate ■the sheriff from amercement, although the statute under which it is taken, expressly declares that on failure to deliver the goods, the bond may be discharged by the payment of either the full *valueofthe goods orthe amount of the debt. 29 Ohio L. 103. [455 .An insolvent debtor, therefore, by bonding goods ofsmall value, bearing a trifling proportion to the judgment against him, may refuse ■to deliver, pay the value of them, and throw upon the sheriff the whole balance of the debt, if the creditor choose to exact it. Surely this can not be the law.

The analogy urged by counsel to the liability of the sheriff for .the. body of a defendant, who has given him appearance-bail, is not established. The appearance-bail bond is for the security of the shex-iff and the party. The party may take an assignment if he will; if he do not take it and rule the sheriff to bring in the body, he is, it is true, liable to amercement, if he do not answer the rule; but the law provides abundantly for his security and pro- • tection. He may enter special bail himself, take out a bail piece, .arrest and surrender the party in discharge of his liability. If he do not retake him, the cause, after special bail is entered, progresses regularly to judgment and execution, and- as special bail, he is only liable after execution against the body of the defendant returned not found and after the appearance term of process served upon him upon the recognizance of special bail. Until then, he has time either to collect the money by suit upon the appearance bail bond, or to take the defendant .and surrender him in discharge of his liability. He is thus afforded opportunity to avail himself of the indemnity provided by the law which required him to let his prisoner go on bail. It appears to me what there is of analogy in the two cases is in favor of my construction of the statute, that in such cases the officer is not liable to the extraordinary and summary proceeding by amercement, but is left to his liability at common law, by suit.

I am of opinion the court of common pleas erred in awarding the amercement against the sheriff, and that their judgment ought to be reversed.

In Ring & Rice v. Foster, ante, 279, and in Austin v. Hayden, ante, 388, Judge Wright dissented. His dissenting opinion, in each of these cases, was overlooked when they were put to press. They will be found at the end-of the volume.  