Currell v. Phillips

By the Court.

Benning, J.

delivering the opinion.

[1.] Should the Court below have made the rule nisi an -absolute one against the Sheriff?

Section 50 of the Judiciary Act of 1799, is in these words: The Sheriff shall be liable, either to an action on the case or an attachment for contempt of Court, at the option of the party, wherever it shall appear that he hath injured such party, either by false returns or by neglecting to arrest the defendant, or to levy on his property, or to pay over to the plaintiff or his Attorney, the amount of any sales which shall be made under and by virtue of any execution, or any moneys collected by virtue thereof.”

The Sheriff shall be liable to á rule, wherever it shall appear that ho hath injured a party, &c. by failing to levy on the defendant’s property, &c.

In this case, the Sheriff failed to levy on the property of the defendant in fi. fa. until after the return term of the fi. fa. Before the next term after that term, he did, however, seize and sell all of the property of the defendant, except some negroes, which he was prevented from selling by an injunction. And the proceeds of the property sold he had in hand when this rule was taken, holding under the claim of other fi. fas.

This being the state of the facts, the question is, does it “ appear” that the Sheriff, by failing to levy until after the return term of the writ, “ injured” the plaintiff? And we must say, that it does not. It does not appear that any of the defendant’s property was lost to the plaintiff, by the delay. It does appear, that these were older fi. fas. against the defendant in fi. fa. and it does not appear but that these jH. fas. may have been large enough to require, for their satisfaction, the whole of the property of the defendant in fi. fa.

We, therefore, cannot disturb the decision of the Court below, refusing to make the rule absolute.