Opinion
(December Term, 1857.)
A court has no power to set aside an execution for abuses of the sheriff in executing its commands.
MOTION to set aside an execution, heard before CALDWELL, J., at the last Fall Term of Perquimons Superior Court.
Smith, for the plaintiff.
Jordan and Badger, for the defendant.
The execution had been levied on two slaves, the property of the defendant, Harrell, and the reasons assigned for setting it aside were as follows:
First. Because it appeared from the return of the sheriff, that he had not advertised the sale at three public places in the county.
Secondly. That the day advertised for the sale, and on which it took place, was very stormy, insomuch, that very few persons attended, and negroes of the value of $1500, sold for $250.
Thirdly. That the day of sale was fixed on by concert between the sheriff and the agent of the plaintiff, so that the defendant could not attend the sale, or that it was altogether inconvenient for him to do so.
Fourthly. That one Mrs. Gordon became the purchaser of the said slaves, at the price of $250; that her agent first forbade the sale, setting up, in her behalf, a claim to the property.
It did not appear that Mrs. Gordon was any privy to the execution.
The Court refused to set aside the execution, on the first ground, because a purchaser at sheriff's sale, in no wise connected with the execution, could not be affected by the negligence or misconduct of the sheriff in not advertising as directed by the statute; that the injured party had his remedy against the sheriff, as well for the penalty as in an action for damages.
And the Court refused to set aside the process on the other grounds taken, because, if there were fraud in the sale, the injured party had a full remedy. His Honor remarked, that setting aside the execution would not divest the title of the purchaser.
We concur in the opinion of his Honor, for the reasons given by him. The execution is regular in all respects upon its face. No irregularity in the manner of its issuing, or in the acts of the officer of the court, i.e., the clerk, is suggested.
The only grounds upon which the motion is based, are alleged acts of omission and commission on the part of the sheriff, after the writ had duly come to his hands. We hold that the court had no power to control the action of the sheriff by setting aside the execution. The party had his remedy against him.
The sheriff is not a mere officer of the court, like the clerk, i. e., an instrument in its hands to do its acts, and record its proceedings, but is an independent officer of the law, intrusted to do acts of his own, as distinguished from acts of the court. Writs are directed to him, not by the court, but by the sovereign to whom he is responsible. The principle, therefore, upon which the court has power to set aside its own acts, or the acts of its instrument, does not apply to the acts of the sheriff. The sheriff is an officer of very great antiquity. The name is derived from two Saxon words, meaning reeve, or officer of the shire. The Earls retain the honor, but the sheriff, vice comes, has the labor, of transacting all the King's business in his county; 1 Bla. Com. 340. The shire reeve, or sheriff, is governor of the county; Bac. Ab. Title, "Sheriff."
The idea that the court may control the action of the sheriff by setting aside a writ, in all respects regular, because of the subsequent acts of the sheriff, is new, and if such a power existed, some precedent could be found of its exercise.
PER CURIAM, Judgment affirmed.