Trustees Fire Department of Brooklyn v. Acker, 26 How. Pr. 263; Fowler v. Westervelt, 40 Barb. 374; 17 Abb. Pr. 59. The words in brackets in the above form may be substituted by any others which will properly designate the title and jurisdiction of the officer. [TITLE.] No. 72. ii. By Sheriff Suing in Aid of Attachment. The plaintiff complains, and alleges: I. That he is the Sheriff of the [city and] county of duly elected, qualified, and acting as such. II. That on the ...... day of 187., a warrant of attachment was issued out of this Court, and to him directed and delivered, as such Sheriff, in an action against A. B., whereby he was directed to attach and keep all the property of said A. B. in his county. III. That the defendant then had in his possession .... dollars]. dollars belonging to A. B. [or was indebted to the said A. B. in the sum of IV. That on the ...... day of 187., the plaintiff made due service of said warrant by delivering to, and leaving with said defendant a copy thereof, with a notice showing the property levied on; whereupon the plaintiff became entitled to receive from the defendant, and he became answerable to the plaintiff for said .... dollars, which the defendant refuses to pay over to the plaintiff, or to account to him therefor; to his damage dollars. [Demand of Judgment.] 6. Form. This form with slight changes, from Abbott's excellent work on forms, is not applicable under the California statute; but being an approved form under the statute of the State of New York, is deemed of value here: See Kelly v. Breusing, 33 Barb. 123; affirming S. C., 32 Id. 601. 7. Right of Action.--The sheriff who levies an attachment has not the right of property in the debt, and cannot maintain an action in his own name for the recovery thereof: Sublette v. Melhado, 1 Cal. 105. An indemnity bond to the sheriff to retain property seized under attachment, is an instrument necessary to carry the power to sue into effect. Davidson v. Dallas, 8 Cal. 227. [TITLE.] No. 73. iii. Against Sheriff for not Executing Process. The plaintiff complains, and alleges: I. That at the time of issuing the execution hereinafter mentioned, the defendant was the sheriff of the county of Sacramento, in this State. II. That on the... day of 187., at judgment was duly given and made in an action in the Court, in favor of the plaintiff, against one E. .... F., for [one thousand] dollars. 187., an exe cution against the property of the said E. F. was issued upon the said judgment, and directed and then delivered to the defendant as sheriff aforesaid. IV. That on that day the said E. F. had [a large quantity of general merchandise] in his store, No. .... First street, San Francisco, and owned the said store and lot [or as the case may be], in the said county, out of which the said execution might have been satisfied, of which the defendant had notice. V. That he refused and neglected to make a levy under or by virtue of said execution, upon said property, or any part thereof [or as the case may be; and if he levies a part, specify it], as by said execution he was required to do, to the damage of the plaintiff .... dollars. ....... [Demand of Judgment.] 8. Arrest, Neglecting to Execute Order of.--That before the return of said order, to wit, on, etc., notice was given to the defendant that said E. F. was within the said county, and that the defendant there had said E. F. in his view and presence, so that if the defendant had desired so to do, he could have arrested the said E. F., by virtue of said order; but the defendant, disregarding his duty, did not arrest the said E. F., and willfully neglected the execution of said order: Dininny v. Fay, 38 Barb. 18. 9. Averment of Official Capacity. That defendant was sheriff, or acted as such, is a sufficient averment of capacity: Potler v. Luther, 3 Johns. 431; Dean v. Gridley, 10 Wend. 255; and see Hall v. Luther, 13 Id. 491; compare Curtis v. Fuy, 37 Barb. 64. 10. Breach of Duty. That although defendant could have levied, of goods of the execution-debtor within his bailiwick, the moneys indorsed on the writ, yet defendant, disregarding his duty, did not levy of the said goods, the moneys, or any part thereof, sufficiently charges a breach of duty, and implies improper conduct in the sale of the goods: Mullett v. Challis, 16 Q. B. 239; 20 Law J. R. (N. S.) Q. B. 161; 15 Jur. 243; Political Code, sec. 4180. 11. Illinois.—The action lies where the officer so delays in making a proper levy that the rights of third parties intervene: 31 Ill. 120. The dam. ages on failure to collect an execution are such as the plaintiff shall actually suffer by the sheriff's neglect: 30 Ill. 339. Where the sheriff accepts an as signment of a chattel mortgage, the plaintiff in execution, being ignorant thereof, is not bound by his acts: 28 Ill. 48. 12. Notice.-The allegation of notice, though usual, seems unnecessary: Tomlinson v. Rowe, Hill & D. Supp. 410. 13. Omission of Duty.-The mere omission of a deputy to inform the sheriff of having process in hand is not such negligence as to charge the sheriff, in case a writ last in hand was executed first: Whitney v. Butterfield, 13 Cal. 335. 14. Refusal to Make Deed.-In an action against a sheriff for special damages, resulting from a refusal on the part of the sheriff to make and deliver to plaintiff a deed to certain premises purchased by plaintiff at sheriff's sale, when there is no allegation in the complaint of title, nor any averment that in case the deed had been executed, plaintiff would have been able to recover possession of the premises, or the rents and profits: Held, that such complaint is insufficient: Knight v. Fair, Sheriff, 12 Cal. 296. 15. Replevin.-For the proper mode of declaring in a complaint against a sheriff for not taking sufficient security in replevin, or in executing a writ in replevin, see Gibbs v. Bull, 18 Johns. 435; Westevelt v. Bell, 19 Wend. 531. Where defendant had a right to replevy, a complaint which avers that the marshal neglected to make the money, is bad: Bispham v. Taylor, 2 McLean, 355. 16. Selling Homestead.--A complaint against a sheriff and his sureties for selling under execution the homestead of plaintiffs, which set out that the sheriff was in possession of a certain execution against plaintiff, J. Kendall, and under color of said execution wrongfully and illegally entered upon and sold certain property, the homestead of plaintiffs, and averring damages in the sum of $2,000, the value of the property, is insufficient, as the same does not state facts sufficient to constitute a cause of action. No damage has or can result from such a sale. If the property sold was a homestead, the sheriff's deed conveyed nothing. The purchaser at sale could acquire no right to the property, nor could the plaintiff suffer any injury: Kendall and Wife v. Clark, 10 Cal. 17. 17. Terms of Execution.-It is not necessary to state the terms of the execution. The Court takes judicial notice of its own forms of proceeding: N. Y. Code Commrs. No. 74. iv. Against Sheriff for Neglecting to Return Execution. [TITLE.] The plaintiff complains, and alleges: I. That at the time of the issuing of the execution hereinafter mentioned, the defendant was the Sheriff of the County of........, in this State. ........ II. That on the....day of... 187., in an action in the District Court of the......Judicial District, County of in this State [or other court], wherein this plaintiff was plaintiff, and one A. B. was defendant, the plaintiff recovered a judgment duly given by said court, against the said A. B., for........ dollars. ......... III. That on the ...... day of .... 187., an execution against the property of said A. B. was issued on said judgment, and directed and then delivered to the defendant, as Sheriff of the county of ........, of which execution the following is a copy: [Copy the execution and indorsement.] days elapsed after IV. That although [more than] delivery of said execution to the defndant, and before the commencement of this action, yet he has, in violation of his duty as such Sheriff, failed to return the same, to the damage of the plaintiff .... dollars. ...... [Demand of Judgment.] NOTE.-The Political Code of California provides as follows: "If the Sheriff does not return a notice or process in his possession, with the necessary indorsement thereon, without delay, he is liable to the party aggrieved for the sum of two hundred dollars, and for all damages sustained by him:" Political Code, sec. 4179. Under this statute, add to the above form the following: And whereby, also, the defendant has become and is liable to the plaintiff in the further sum of two hundred dollars under the provisions of section 4179 of the Political Code of the State of California; Wherefore the plaintiff demands judgment against the defendant for the said sum of two hundred dollars, under the provisions of the statute aforesaid, and the further sum of ..... dollars, his damages so as aforesaid sustained, and for costs of suit. 18. Issue of Process.--It is sufficient, after showing jurisdiction to issue process, to allege that it was issued: French v. Willett, 4 Bosw. 649; S. C., 10 Abb. Pr. 99. 19. Property.—In an action for not returning an execution, the complaint need not aver that defendant had property out of which the money might have been levied. The gist of the action is the neglect to return: Pardee v. Robertson, 6 Hill, 550. It is not necessary to allege or prove special damages: Ledyard v. Jones, 7 N. Y. 550. 20. Remedy.-Plaintiff may proceed by attachment, or may sue for the neglect: Burk v. Campbell, 15 Johns. 456; Bank of Rome v. Curtiss, 1 Hill, 275. This action lies, although the sheriff has not been ordered to make return: Burk v. Campbell, 15 Johns. 456; Bank of Rome v. Curtiss, 1 Hill, 275; Pardee v. Robertson, 6 Id. 550. 21. Request.-A request to return execution need not be alleged: Corning v. Southland, 3 Hill, 552; Fisher v. Pond, 2 Id. 338; Howden v. Stannish, 6 C. B. 504; S. C., 60 Eng. Com. L. R. 503. No. 75. v. Against Sheriff, for Neglecting to Pay over Moneys Collected on Execution. [TITLE.] The plaintiff complains, and alleges: I. That at the times hereinafter mentioned, the defendant was the Sheriff of the County of...... in this State. 187.., at... ......... II. That on the .... day of ... an execution, then duly issued, in form and effect as required by law, against the property of one A. B., and in favor of the plaintiff, upon a judgment for the sum of........... dollars theretofore duly given in favor of the plaintiff against said A. B., in the District Court of the....Judicial District, County of........, in this State, was by the plaintiff directed and delivered to the defendant as such sheriff. III. That the defendant thereafter, as such sheriff, collected and received upon said execution, to the use of the plaintiff, the sum of dollars, besides his lawful fees. IV. That although [more than] sixty days elapsed, after the delivery of said execution to the defendant, before this action, yet he has, in violation of his duty as such sheriff, failed to pay over to the plaintiff the amount so collected. [Demand of Judgment.] NOTE." If he neglects or refuses to pay over on demand, to the person entitled thereto, any money which may come into his hands by virtue of his office (after deducting his legal fees), the amount thereof, with twenty-five per cent. damages, and interest at the rate of ten per cent. per month from the time of demand, may be recovered by such person:" Political Code, sec. 4181. Under this section neither the rate of interest specified therein, nor twenty-five per cent. as damages, can be recovered, unless there has been a demand for the money collected, prior to the commencement of the suit, and in such case the complaint must aver such demand and the date thereof. The above form is sufficient for the recovery of the money received by the sheriff, and legal interest from the time it should have been paid over. If it is desired to recover the damages and special rate of interest provided for in the above section of the Code, omit Part IV in the above form, and insert the following: IV. On the .... day of 18.., the plaintiff demanded of the defendant that he pay over to him the moneys so received by him upon said execution, as aforesaid, less his lawful fees thereon, yet he has, in violation |