20 Wend. 234 | N.Y. Sup. Ct. | 1838
The only material question in this case is, whether the demand was made before the suit was commenced. The writ was made out, and a special deputation procured from the sheriff, and then retained by the plaintiff until after the demand and refusal, when it was put into the hands of the special deputy, with directions to serve it. It is contended by the defendant, that the sheriff could not have legally constituted a special deputy, unless the writ had been put into his hands for execution. If he could, it is clear enough that the plaintiff did not intend the issuing of it in fact until after the demand. Unless, therefore, the commencement of the suit is a legal inference from the facts, the nonsuit was erroneous.
The statute, 1 R. S. 379, § 73, provides that every sheriff may appoint as many deputies as he thinks proper, a and persons may also be deputed by any sheriff or under-sheriff, by an instrument in writing, to do particular acts.” The sheriff possessed this power at the common law. 6 Bacon's Abr. tit. Sheriff, H. I perceive nothing in the statute or in the nature of the power which should confine the execution of it to a period of time after the writ was issued and in force, or any reasonable objection to the deputation before it is issued, provided the act to be done be defined with sufficient particularity. The authority to constitute a general deputy, includes necessarily the power of creating a special deputy, and to the extent delegated the power would seem to be the same. It cannot be that all control over the writ passes from the party on procuring the special deputation, or that he may not afterwards issue it, or omit to do so, at his discretion.
I entertain no doubt that a demand was necessary to enable the plaintiff to sustain the .suit. The possession of the notes by the defendant was not unlawful or tortious, because they were delivered by the plaintiff himself. As it was lawful for him to deliver the notes, it surely was so for the defendant to receive them. True, the agreement under which they were delivered was not binding, and hence the plaintiff had the right to repudiate it j but this did not render the acts done under the agreement tortious.
Judgment reversed j venire de novo.
