Charles Chevalier v. David Rusk, 1 Dallam 611

JONES (William J.), Justice .—The facts presented by the record in this case show, in substance, that David Busk, the sheriff of Nacog-doches County, received from Charles Chevalier two several executions, issued by a justice of the peace of said county, in the name of said Chevalier, against A. H. Bell and Charles Hotchkiss et al.; which executions were placed in the hands of the said Rusk, sheriff as aforesaid, to be served of the goods and chattels of the said Bell and of the said Hotchkiss and others.

The petition of the appellant further alleges that a summons issued by a justice of the peace of said county, in the name of Charles Chevalier against Jacob Garrett, was delivered to the appellee, as sheriff of Nacogdoches County, to serve as the law directed; all of which writs he refused to execute. To the plaintiff’s petition the defendant demurred (and issue joined thereupon), which was sustained by the court below.

The act of Congress of 183G, which empowers the sheriffs to receive all process directed to them from a magistrate’s court, is compulsory and without qualification; “to execute all writs and other process to them legally issued and directed from any justice of the peace or court of record, and shall make due return thereof to the proper court on the day to which the same is returnable; and any sheriff who shall fail herein, or make a false return, shall be liable (in addition to other penalties) to the party injured, for all damages he may sustain thereby.” Our statutes (in addition to the ordinary duties of the sheriffs) impose many requirements not known to the common law, and the duties of sheriffs in some counties have, from their multiplicity and petty character, become extremely onerous.

Under such circumstances, cases may arise where those officers might be compelled to omit the performance of one duty in order to execute the other faithfully. As in the case of an order from a magistrate to serve his summons, whilst the sheriff was in attendance upon the district court, or executing its commands, or discharging any duties devolved upon him by courts whose jurisdiction is coextensive with the county.

The Constitution, in creating the office of sheriff, does not impose the obligation upon the officer to make a deputy; and although, under the laws, he has power to appoint his deputy, we know of no authority to compel him to do so. In the case before us there is no allegation in the petition of the plaintiff that the sheriff had a deputy; but it distinctly alleges the delivery of the several writs, emanating from the magistrates, to the sheriff himself, who refused to execute them.

The act of Congress defining the duties of sheriffs, from which an extract has been made, is broadly phrased, and by its strict letter would leave the sheriff no room to justify his refusal to obey the mandate of a magistrate, although it might impose upon him a double duty to be performed at one and the same time. But it is our place to give this statute a fair and liberal

interpretation; and upon the old legal maxim, that “no man is required to perform impossibilities,” we are led to the decision that the sheriff may show, in avoidance of the several penalties imposed by law for a failure to execute and return process emanating from a magistrate’s court, that he had other duties of a paramount character to discharge, which rendered it impossible for him to execute and return such process in due course of law. This defense is matter of evidence for the decision of a jury, under the charge of the court, as to what may be admitted to establish a legal excuse.

Another cause of demurrer, taken by the defendant in the court below, is, that the plaintiff can not blend several causes of action in one suit. In the case of the Duke of Bedford v. Alcock, 1 Wilson, 252, the chief justice who delivered the opinion of the court adjudged, that although the plaintiff had declared upon three contracts (one implied and two express contracts) they must give judgment for the plaintiff, as the process and judgments in all the three counts were the same.

We there find the broad dictum, that debt and detinue may be joined although the pleas are different; and in detinue, the judgment must vary from that in debt. In Cecil v. Briggs, 2 Tenn., 639, two suits were brought, and a rule obtained to show cause why they should not be consolidated. It was objected against the rule, that it was not necessary but inconvenient for the plaintiff in all cases to consolidate his several causes of action, though they were of the same nature and accrued at the same time.

The court said “that, as by the rules of law the plaintiff might have comprised both his causes of action in one suit, it was oppressive to sue out two writs at the same time. That the possibility of this rule being attended with any inconvenience to the plaintiff was no answer to this application.” The plaintiff was required to consolidate and to pay costs. The civil law authorities have kept in view the same principle here decided, and the general rule, laid down by them, is, that all demands not inconsistent with each other must be joined in one action.

Both systems equally agree in condemning a multiplicity of suits and an accumulation of costs. Under our statutes, intended to simplify the rules of pleading, no distinctions as to forms of action are recognized, and a great latitude, not tending to manifest confusion, may be allowed in the joinder of actions. This court has already decided, in Binge and Blair v. Smith, that wUere the plaintiff has two causes of action which may be joined in one, he ought so to proceed, and if he sever he should be compelled to consolidate.

This decision concurs with the general rule laid down by the. common law authorities, which is stated to be, “that when the same plea may be pleaded, and the same judgment given on all the demands, or when the same judgment is to be given, though the pleas he different, they may be joined.” We are of opinion that the judgment of the court below upon the demurrer should be annulled and reversed, and the cause remanded to the District Court of Nacogdoches County, with instructions that the defendant be allowed to amend his pleadings and proceed to trial upon the merits of the case. Reversed and remanded. Judge Wm.

B. Jones says: “I dissent from much of the foregoing opinion. I agree with so much of it as relates to the joinder of the different causes of action in the petition, but do not agree to so much of it as decides that a sheriff is responsible for refusing to execute process in civil cases issued by justices of the peace.

I think he may execute such process, and if he receives it he will be responsible, unless for good cause shown for its non-execution, but that he can not be compelled to receive it.” Judge Jack says: “I have no doubts, under our statutes, that sheriffs are bound to execute process issuing from justices of the peace and are responsible to any party injured for a refusal to do so; unless it can be shown that some sufficient reason existed for their failure to serve such process. I doubt as to the correctness of the joinder of the several causes of action in the present case.”