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In an action brought by another claiming title to property seized by an officer under process regular upon its face, the latter must, in addition to showing that he acted under such process, also show that he acted under a valid judgment for and on behalf of a creditor of the judgment debtor. While the action by such owner of the property is one in tort against the officer, he is only a nominal defendant, the judgment creditor being the real party, and in some states are found statutes allowing the substitution of the real party for the nominal party in such cases. 38 But in an action against an officer by the party against whom the process issued to recover damages for an illegal seizure, the process, if valid, constitutes a complete justification.39

But to return to the position in which the officer would find himself, so far as concerns his personal liability, and apply to the ordinary constable or sheriff the satirical truth and wit of a distinguished lawyer, which might take rank as a serious maxim of the law: "All persons are presumed to know the law and be responsible for their acts, except judges of the courts of superior and general jurisdiction"; Beach v. Botsford, 1 Doug. 199, 40 Am. Dec. 45; Gidday v. Witherspoon, 35 Mich. 368; Le Roy v. East Saginaw City Ry., 18 Mich. 234, 100 Am. Dec. 162. See, also, for the cases usually cited showing the conflict above spoken of, in addition to above citations; Leachman v. Dougherty, 81 Ill. 325; Guyer v. Andrews, 11 Ill. 494; McDonald v. Wilkie, 13 Ill. 22, 54 Am. Dec. 423. See, also, note containing valuable discussion by Mr. Freeman, 21 Am. Dec. 201. In action by one claiming title to property seized, the officer must, in addition to showing the writ, also show that he acted under a valid judgment: Townsley M. D. G. Co. v. Fuller, 58 Ark. 181, 41 Am. St. Rep. 97, 24 S. W. 108.

38 Townsley M. D. G. Co. v. Fuller, 58 Ark. 181, 41 Am. St. Rep. 97, 24 S. W. 108; Bogert v. Phelps, 14 Wis. 89; Hakanson v. Brodke, 36 Neb. 42, 53 N. W. 1033.

39 Id. The two cases in the foregoing note support this doctrine. See, also, ante, note 37.

we would require of such officers that they should know and be able to decide the question between the parties to the case, and if they make a mistake and execute process when they ought not to do so, they will be responsible in damages to the defendant; but, on the other hand, if they mistake the law and refuse to execute the writ, they will be answerable for any loss which the plaintiff sustains, and will be free from responsibility only when they decide the law correctly.

§ 178. Liability of Officer for Excess of or Improper Service of Process. We have now set forth the general principles of official liability, embracing the duties and responsibilities of the executive officers of courts, and in view of special works on officers,40 and of the manifold duties of such officers, and the numerous cases which have determined for what neglect in particular instances they have been held liable, we are content with setting forth a few illustrations of the kinds of neglect or acts for which sheriffs and constables will be held liable, although their liability for trespass and conversion is considered in a subsequent chapter.41

In accordance with the general principles above enunciated a sheriff who refuses to execute a writ valid on its face will be held to answer for the damages resulting from such refusal,42 even where there is a plain clerical mistake in the date of the judg ment, 48 or in the date of the teste of the writ, or

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40 Mechem on Public Officers; Throop on Public Officers; Freeman on Executions.

41 Chapter 38.

42 Jordan v. Porterfield, 19 Ga. 139, 63 Am. Dec. 301; Chase v. Plymouth. 20 Vt. 469, 50 Am. Dec. 52; Stevenson v. McLean, 5 Humph, 332, 42 Am. Dec. 434; Bank of Whitehall v. Pettis, 13 Vt. 395, 37 Am. Dec. 600.

43 Bank of Whitehall v. Pettis, 13 Vt. 395, 37 Am. Dec. 600. 44 Jordan v. Porterfield, 19 Ga. 139, 63 Am. Dec. 301.

any other errors or irregularities which make the writ voidable only and not void.45 Among his duties is that of serving the process placed in his hands with all the expedition which his knowledge of the circumstances indicate to be necessary, and in all cases with reasonable promptitude.

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On this ground it has been held that a failure to serve an execution for over three weeks after it came into his hands is a breach of duty rendering the sheriff liable for the injury caused by the delay, and four days has been held too long a time to keep process without levying.48 So if he fails to execute his writ when an opportunity is afforded him, he renders himself liable.49

What constitutes reasonable diligence is a question of fact in each case, and one in which the jury must consider all the facts of the particular case before them, such as the information which the officer actually possessed, the means at his command to obtain further knowledge, and the various other duties and hindrances which may have detained him. As a usual thing, the person interested in having process served takes pains to point out the property subject to the writ or inform the officer of its location. But he is not bound to do so, and the officer's duty is to make a reasonable search and inquiry for property subject to the writ, and a failure to make such search and inquiry will be deemed negligence; 50

45 Stevenson v. McLean, 5 Humph. 332, 42 Am. Dec. 434; Chase v. Plymouth, 20 Vt. 469, 50 Am. Dec. 52.

46 Ante, sec. 176.

47 Lindsay v. Armfield, 3 Hawks, 548, 14 Am. Dec. 603.

48 State v. Roberts, 7 Halst. 114, 21 Am. Dec. 62.

49 Chapman v. Thornburgh, 17 Cal. 87, 76 Am. Dec. 571; Fletcher v. Bradley, 12 Vt. 22, 36 Am. Dec. 324; State v. Roberts, 7 Halst. 114, 21 Am. Dec. 62.

50 Hargrave v. Penrod, 1 Breese, 401, 12 Am. Dec. 201; Hinman v. Borden, 10 Wend. 367, 25 Am. Dec. 568.

and "vague inquiries made on the streets" are not "reasonable endeavors to execute process."51

It is a well-settled principle that not any process, however perfect, fair and regular in appearance or fact, will furnish a protection for those acts which are not in pursuance of its commands. Process of any sort gives no right to do any act but those expressly stated in its mandates, or those necessary to the carrying out of its mandates. Hence, if a sheriff does any act not expressly or impliedly commanded by his writ, he cannot justify himself under it. Thus, if his writ lawfully commands him to seize the property of one person, it will not protect him in taking the goods of some one else.52 Nor does it give him authority to take property which is properly claimed as exempt, for the exemption laws form a part of his writ;53 nor to arrest one individual upon a warrant for another;54 or to seize the members of a corporation when commanded by an execution against the corporation itself.55 Especially is this

51 Hinman v. Borden, 10 Wend. 367, 25 Am. Dec. 568.

52 Bishop v. McGillis, 80 Wis. 575, 27 Am. St. Rep. 63, 50 N. W. 779; Fish v. Nethercutt, 14 Wash. 582, 53 Am. St. Rep. 892, 45 Pac. 44; Wellman v. English, 38 Cal. 583; State v. Jennings, 4 Ohio St. 418; People v. Schuyler, 4 N. Y. 173; Charles v. Haskins, 11 Iowa, 329, 77 Am. Dec. 148; Lammon v. Feusier, 111 U. S. 17, 4 Sup. Ct. Rep. 286; Lowell v. Parker, 10 Met. 309, 43 Am. Dec. 436. These are all cases in which the sureties were sought to be held, but the principles laid down in another section indicate that the liability of a surety is never more than that of his principal.

53 Spencer v. Long, 39 Cal. 700; Van Dresor v. King, 34 Pa. St. 201, 75 Am. Dec. 643; State v. Moore, 19 Mo. 369, 61 Am. Dec. 563; Hall v. Renney, 11 Wend. 44, 25 Am. Dec. 601; Fuller v. Sparks, 39 Tex. 136; Dow v. Smith, 7 Vt. 465, 29 Am. Dec. 202. As to kinds of remedies, see monographic note by Mr. Freeman, in 75 Am. Dec. 645-652; McCoy v. Brennan, 61 Mich. 362, 1 Am. St. Rep. 589, 28 N. W. 129.

54 Griswold v. Sedgwick, 1 Wend. 126.

55 Nichols v. Thomas, 4 Mass. 232.

the rule when the acts are oppressive in their nature, such as remaining in an office of an attorney after levying upon the furniture therein longer than was necessary to remove it, and after being requested to leave,50 or in a store too long after making an attachment of goods,57 or placing an intoxicated and abusive person in charge of attached property in a house, 58

59

The sale of a chattel in entirety when the debtor's estate in it is but an interest in common with others is the same as selling property of a third person," and a sale which is without the notice required by law constitutes a trespass," 60 or, if notice is given, a sale at a different place 61 or time from that given in the notice,62 the officer is liable.

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Again, an officer who has civil process placed in his hands for service is not bound, and has no right to break into a house to serve or execute the same; and a levy made after an entry is so made of the dwelling of another has been regarded as illegal, upon the theory that an act done in committing an illegal act should not be upheld.

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56 Williams v. Powell, 101 Mass. 467, 3 Am. Rep. 396.

57 Rowley v. Rice, 11 Met. 337.

58 Malcom v. Spoor, 12 Met. 279, 46 Am. Dec. 675.

59 Walsh v. Adams, 3 Denio, 125; Melville v. Brown, 15 Mass. 82; Sheppard v. Shelton, 34 Ala. 652; Weld v. Oliver, 21 Pick. 559. 60 Kerr v. Sharp, 14 Serg. & R. 397. See Sutton v. Beach, 2 Vt. 42.

61 Hall v. Ray, 40 Vt. 576, 94 Am. Dec. 440.

62 Smith v. Gates, 21 Pick. 55; Carrier v. Esbaugh, 70 Pa. St. 239.

63 Snydacker v. Brosse, 51 Ill. 357, 99 Am. Dec. 551; Swain v. Mizner, 8 Gray, 182, 69 Am. Dec. 244; State v. Beckner, 132 Ind. 371, 32 Am. St. Rep. 257, 31 N. E. 950; Calvert v. Stone, 10 B. Mon. 152; Nelson v. Garey, 114 Mass. 419; Burton v. Wilkinson, 18 Vt. 186, 46 Am. Dec. 145.

64 People v. Hubbard, 24 Wend. 369, 35 Am. Dec. 628; Freeman on Executions, sec. 256.

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