IMPRISONMENT.
If a court having jurisdiction issues a writ against specific property, the sheriff is protected in seizing it ; Bullis v. Mont gomery, 50 N, Y. 355; whoever owns it ; Sample v. BroadWell, 87 Ill. 617; if he take it from the defendant in the writ ; Billings v. Thomas, 114 Mass. 570 ; although the plaintiff had no claim; Cannon v. Sipples, 39 Conn. 507. See infra.
A' levy on the goods of a stranger to an execution amounts to a trespass, although the goods are not touched and there is no actual taking, and to maintain the action the plaintiff must have the right of, or be in actual, possession of the property at the time of the levy ; and the sheriff may aban don or restrict the levy to the defendant's interests, and be thereby discharged, even though the return was not altered until after the action of trespass is begun; Dixon v. Sewing Mach. Co., 128 Pa. 397, 18 Atl. 502, 5 L. R. A. 659, 15 Am. St. Rep. 683.
A sheriff may not serve a writ to which he is a party ; Thayer v. Ray, 17 Pick. (Mass.) 166; or in which he is interested; Barker v. Remick, 43 N. H. 238. In such case the coroner must act; if he cannot, then elisors are appointed, which see.
Where there are several writs, it is the sheriff's duty to serve them in the order of their receipt ; Freeman, Exec. § 197 ; Knox v. Webster, 18 Wis. 406, 86 Am. Dec. 779. Where the judgment is a lien, it is his duty to apply the proceeds to the oldest lien; Polk County v. Sypher, 17 Ia. 358, 85 Am. Dec. 568; but if the defendant gives him money to apply to a junior execution, he must so apply it; Rudy v. Com., 35 Pa. 166, 78 Am. Dec. 330.
A sheriff cannot arrest in civil proceed ings without a writ ; 8 Term 187; which the person arrested is entitled to see; Com. v. Field, 13 Mass. 321; and the writ must con tain the correct name of the person arrested; Gurnsey v. Lovell, 9 Wend. (N. Y.) 319; un less he is known by either name; Griswold v. Sedgwick, 1 Wend. (N. Y.) 132 ; but the officer is liable for arresting the wrong per son, whose name is the same as that in the writ; Hallowell & Augusta Bk. v. Howard,
14 Mass. 184. Misnomer in an execution in which the same .mistake occurred as in the original writ, does not affect the officer; Smith v, Bowker, 1 Mass. 76. See ARREST.
Where a person in custody on civil pro cess escapes, the sheriff is liable to plaintiff for the value of the claim ; State v. Falls, 63 N. C. 188. At common law, vol untary escape made the sheriff liable for the plaintiff's claim, and discharged the defend ant; Hopkinson v. Leeds, 78 Pa. 396; but if the escape was through negligence, or was involuntary, reception before suit by the plaintiff was a bar ; Stone v. Wilson, 10 Gratt. (Va.) 529.
The sheriff must act with diligence; An drews v. Keep, 38 Ala. 315; and, in the absence of instructions, execute the process according to its terms ; Smith v. Judkins, 60 N. H. 127; Ransom v. Halcott, 18 Barb. (N. Y.) 56. Special instructions regarding a general writ should be followed; Perkins v. Pitman, 34 N. H. 261; in the absence of which he should make reasonable search for the defendant and his property; Freeman, Exec. § 252. If he has doubt as to the title of the defendant, he may require indemnity; Burnett v. Handley, 8 Ala. 685 ; which is im plied by instructions to proceed in a special manner; State v. Koontz, 83 Mo. 323. If he seize the property of one not named in the writ he is liable as a trespasser; Hanchett v. Williams, 24 III. App. 56; if he remain in a house a long time in possession of goods taken in execution, he becomes a trespasser ab ,nitio; 8 Ex. 237.
An officer may continue to levy until the return day in order to satisfy the writ; Mo ses v. Thomas, 26 N. J. L. 124; but is liable for an excessive levy ; Sexey v. Adkison, 40 Cal. 408; and must take due care to preserve the lien on the property attached; Cooper v. Mowry, 16 Mass. 5; in moving goods; Gil bert v. Meriam, 2 La. Ann. 162; but if the property attached perishes without his fault, he is not liable; Shaw v. Laughton, 20 Me. 266.
See EXECUTION; ARREST; ELISORS; Es