The New York herald., 1874-12-25

1865, chap 900, page 1881 provides mat ''any sum-
MONS warrant. attachment, execution or other
process issued oy any or the justices OF the Ma
rine Court OF he city OF New York. by the
Clerk OF said Court, NAV be served or executed oys
ans sia o rms m s. sp .s sec
~, which declared tnat all process, except sum
mons, issuing out o. said Court should "be di.
rected TO and served by the sheriff OF the city and
county oil New York,n and the effect OF the modif-
cation was that executions or judgments OF the
Marine Court could be executed either by the
Sheriff or a marshal lSee the matter OF OFT. IS
Abb. q. >, 2s3.l These statutes seem ~ nave re.
NAMED unchanged until the act OF 1872 tcnap. 6as
Laws OF 1872 page l.493 vol. ~.
The eighth section OF the last cited act provides
that IA Judgment OF the Marine Court for the sum
whereof Is docketed in the once OF the
Clerk OF the CITY and county Of New York shah
have the same effect as o ioD, and be enforced IN
the same manner as the Judgments OF the Court
OF Common Pleas Tor the city aad county OF New
YORK. All process except the summons shall be
directed 70 and executed by the officers as now
prescribed by existing laws, VINO SHAH he subject
to the control OF the SAID Marine Court respect
thereto, with the IKE power and In same man-
ner anu with IKE effect as Is now by law given TO
and exercised by The said other courts OF record.n
The first provision OF this section operates to
make dockeied Judgment OF the Marine Court
lien on real estate. and 10 for its enforce
ment which is 10 be done ''in The same manner
as the Judgments OF the Court OF Common Pleas.n
Tne judgments OF that Court are liens wnen
docketed, and are eniofced BY execution directed
clothed win the power necessary to the
enforcement OF sucn liens by the sale and
conveyance OF real estate, ana, therefore,
Tor very obvious reasons, the execution
OF a judgment OF the Marine Court when docketed
under the act above cited Is committed 10 his
bands. The second provision oil the section was
evidently designed to confer on the MarlDe Court
the control over the officers OF every description
by whom It's process can be Issued mat is pos
sessed by other courts OF record IL was not IN
tended by that provision to make any change IN
respect to the officers TO whom the process OF the
Court could be directed. on the contrary the ex-
listing laws on tnaJ subject were preserved, and
they remain in lull iorce except as modified by the
provision OF the same section in respect to judg-
ments which have become liens by beng docketed
in the County Clerks once. The result Is that
all docketed judgments execution must be
issued TO the Sheriff; on all other judy
ments execution may be directed and
issued to either the Sheriff or to q
marshal. The execution in TINS case was issued
upon u Judgment which had not been dockeied.
IL was. therefore, lawfully directed to marshal.
The officer to whom an execution Is lawfully dcliv-
ereu IS bound TO proceed with 1t, and Is subject to
penalties, both civil ana criminal for refusal or
neglect. The general rule or the Marine Court,
lar as t relates to this question, cOntravenes the
statute ana must fall before 1t. These views SUBJ
stantiay accord with the opinion OF Chief Justice
Shea, In Lehman vs.. Faltenmeyer tMS.), which IS
now before me. The result is tnat the provision or
the rule referred to was vOi0 and its disobedience
by the Marshal, not accompanied by any contuma-
cious conduct on his part, except the simple as
sertion OF the right to levy ana enforce the eXecu
tion could not lawfully be punished as o contempt.
The prisoner must be discharged.