Morning herald. [volume] (New York [N.Y.]) 1837-1840, 1838-01-12

entered on the private minutes although the costs IN
the sun might not be paid for SIX weeks afterwards or
longer time.
DIR. John w. Grayden deposed that Merkle admitted
70 nm tina! ne had levied Staggs goods he asked
Nun 70 make return or pay the money. Merke
SAID hrst mat he had partly compensated Short by
giving hlIh some lime But this lime received for
DINER CONSIDERATIONS distinct from the Judgment in
question. Witness told him that unless lie paid the
money or made return he must commence a suit
against nm, fer Short needed The money much. Mer-
kie mace some excuse but finally said that he would
make sale OF the goods the next Saturday, or col
iect me money and pay il To Short or his agent.
he last tlme witness saw him, he said he had made
no safe, nor paid any money did he intend to do
~ Dat considered That he was Unidentified, and had
gwen to able counsel. Did not say in what way he
waslndemnlied; made some excuse that il was hard
case 10 sell Stages goods
Cross-examned Mr.. Short could not understand
why no return was made, and so asked me 10 see TO
the business. The only excuse Merkle made was
lhat plain'lfi had received the whole or a portion
of the amount in lime
For the defence it was contended that he had adj
Journeo the sale OF goods very properly, end was in
the act of paying, or about pay when the suit was
commenced
This was the case.
Judge Irving charged that the officer received the
process-that he had levied on the googs--made no
salc-nlade no return-and, therefore, was liable TO
any party who aggrleved or injured by his neglect
BY the Revised Statutes, Vol. 2, p. 1858, Sec II, OF
the new edition. every sheriff other officer sceiyns
VIII, DOunu 10 execute the same, Inc
orders of the court, and make due reurn signed by
himself in failure of which he is liable to the parties
thereby injured TO the amount of loss sustained in
addition 10 the fine or Imprisonment imposed by law
for neglect of duty. An officer cannot SIT judgment
on process-hls duty is simply 10 obey the court,
and to make a due and prompt return unless he can
show himself justified TO the Courl and Jury, for not
making due return, by OF causes beyond his
control; SO 10 show the court that he had been
prompt, and that they might ascertain II his excuse
was sufficient. He has no power to be generous or
humane Ia the matter or TO say whether the debt be
Just or not; he must execute the process and make
proper return, pay the aggrieved parties. If he
caanot find goods he is bound take the body of the
party against whose goods the writ is issued and i'm
prison him. The defendant had done nothing of the
kind and was liable TO damages.
The following clause then read from the Laws
relating 10 the city and county Of New York, under
the head of" Assistant Justices" page 81 Sec 99h,
was also the l55th Sec. confirming il.
"And is such constable marshal whom any
en shall be delivered shall within five days receiving
such execution levy The the goods chaes Of the
whom such execution shall be granted and
teen days thereafter the debt damages ard COSTS
levied into the hands OF the justice who issued the
in his death removal from Office the
son whose favor the execution goods
or chae can he iouHd heron to then the said con-
stable marshal shall such II, take
The body of the person against whom such execution
granted If to be found within fifteen The receipt OF
such execution aforesaid then sush The
said constable marshall shall be holden the amount
OF such execution be by action of debt with
by the whose such granted
in which execution shall issue forthwith against such
constable or marshall"
The jury found verdict for plaintiff 80.