Egery & Hinckley v. Buchanan , 5 Cal. 53 ( 1855 )

Heydenfeldt, J., delivered the opinion of the Court.

Murray, C. J., concurred.

The plaintiffs have mistaken their remedy ; they are concluded by the return of the sheriff, and their action must be for a false return. A sheriff’s return is not traversable, and a Court will not permit it, collaterally, to be attacked, even if the officer is shown to have been guilty of fraud and collusion. Sewell on Sheriffs, 387. Watoon on Sheriffs, 72.

It is urged, that the statute of this State, giving extraordinary damages against the sheriff for failing to pay over money collected on execution, has affected or altered the rule at common law. There is no reason for this position, and very strong reason against it. The statute penalties are only recoverable when, by the return of the sheriff, he admits the collection of the money and refuses to pay it over. If it were otherwise, an error in judgment, or even a hesitation to decide between adverse claimants, might work the ruin of any honest and conscientious officer. The statute gives twenty-five per cent, damages on the amount collected, and ten per cent, per month in addition from the time of the demand. It will hardly be pretended that cases do not often occur, where the sheriff, on account of contests between creditors, and his own inability to decide the right, declines a demand, which turns out to have been justly and properly made. In such a case, to deprive him of the benefit of his return, and visit upon him the heavy penalties of the statute for failing to pay the money on demand, would be a cruelty and injustice which the law never contemplated. The argument that sheriffs will avail themselves of this doctrine, and make false returns, so as to avoid the penalties of the Act, is without any weight, and not entitled to consideration.

The law presumes that every officer will faithfully perform his duty, and has done so in every instance, until the contrary is shown ; a fortiori, it will never bend this principle upon the hypothesis that a a sworn officer of the law will make it a business to commit perjury.

The judgment is reversed, and the motion in the Court below dismissed.