Barhydt vs. Valk, 12 Wend. 145

By the Court, Nelson, J. It is no doubt the duty of the constable to search for property of the defendant in the execution out of which to collect the debt, before committing the defendant to jail, and we do not say but that there may be so flagrant a departure from duty in this respect as to sustain the action of trespass and false imprisonment, where a committal takes place without such search, and when there is sufficient property to satisfy the execution; but the case should be a very clear and marked one, to induce the court to countenance this remedy.

These executions combine the common law writs of ji. fa. and ca. sa., and the officer is bound to execute the one or the other within 30 or 90 days, as the case may be, at his peril, if within his power.

To prove affirmatively that he had searched for property, may often times be impossible, unless he takes with him a witness, which cannot be required ; and we therefore perceive no objection to the application of the general presumption that the officer had done his duty in the first instance, and to throw the burden, in these cases upon the defendant, to show that he had property clearly subject to the execution, and that he disclosed the fact to the constable, who, notwithstanding, refused to take it.

The revised statutes provide, that an execution not satisfied may from time to time be renewed by the justice issuing the same, “ by an endorsement thereon to that effect, signed by him, and dated when the same shall be made.” 2 R. S. 251, § 145. Without this provision a new execution must necessarily have been issued, and I do not see how we can consider the old process revived without a substantial compliance with the terms of the statute.

The former act, Laws of 1824, p, 286, § 14, did not prescribe the form of such renewal, and it was decided, 6 Wendell, 663, that any memorandum of the justice upon the execution indicating an intention of renewing the same was sufficient, without his signing his name. The present statute prescribes the form, the substantial parts of which cannot be dispensed with, and as the process is defective upon the face of it, it cannot protect the officer within any of the cases on this subject. 5 Wendell, 175. Judgment reversed.