5 Denio 586 | Court for the Trial of Impeachments and Correction of Errors | 1846
How far the sheriff’s return is evidence per se to facts exculpating him from liability, is not very clearly settled. It is evidence for him as to those acts and doings, which have respect to his official duties, arising under the mandatory part of the "process. For instance, the indorsement of the time of receiving the writ, and the act of levying and the goods levied on, is a statement of official acts which the writ requires, and should be allowed as evidence in his favor, subject nevertheless to be impeached. The subsequent destruction of the property levied upon, whether occasioned by casualty, or the carelessness or wrongful act of the sheriff, is far from being an official act. It would, I apprehend, be an unsafe rule to establish, which would relieve him from liability, after having taken goods upon an execution upon his own return, that they were casually burned. I can see no reason why a return that they were casually lost by him or stolen from him would
Again, if the property is left in the possession of the defendant on a receipt given, I hold with the late Justice Cowen, that the sheriff should be made liable at all hazards. This absolute liability, is founded upon the agreement of the receiptor, upon the principle that the liability of the sheriff should be as broad as that of the receiptor to him. The receiptor is not the agent of the sheriff in the proper sense of the term, nor is he his bailee, subject to such rules only as extend to and regulate such relations. He is the friend and surety of the debtor at whose request and on whose account the goods are left in his possession, subject to all risk of loss and destruction. Where such a receipt as was given in this case is taken, the sheriff surrenders all charge of the property and looks to his receipt for his indemnity. The idea that the receiptor is his bailee or agent, is far from his thoughts, and he reposes himself upon the contract to indemnify him which he holds. The receiptor agrees either
The return of the sheriff, that he was served with an order to stay proceedings, affords him no relief. If the fact was in any respect available, it should have been proved. His return, in that particular, had no respect to any official act. The charge that the return as to the loss of the goods was proper evidence for the sheriff, I think erroneous. For these reasons, I am in favor of reversing the judgment of the supreme court and granting a new trial.
The counsel for the plaintiffs requested the judge to instruct the jury that the return of the sheriff formed no defence to the action, even if it were true. The judge refused this, but on the contrary, did charge and instruct them that the return, if true, formed a good defence to the action, and that the same was evidence for the sheriff, that the goods levied on had been destroyed. In this the judge was clearly wrong; and upon this point alone the verdict must have been rendered for the defendant. The jury seemed to have forgotten or to have regarded as of no importance the rest of the charge. The sheriff had made a special return long after the return day of the execution, and no doubt after the commencement of the suit, in which was admitted a right of action fora portion of the plaintiff’s claim, and without the
Senators Barlow, Wright and Talcott delivered written opinions in favor of a reversal of the judgment, in each of which the position was maintained, that the return of a sheriff is evidence only of such official acts as are required by the writ to be performed, and not of facts to excuse their non-performance; and that in relation to such acts, it is simply prima facie evidence, and may be disproved. Senator Wright also concurred in the views contained in the dissenting opinion of the late Justice Cowen, (5 Hill, 593,) that when a sheriff leaves property levied upon in the hands of the debtor in the execution, he becomes as to the creditor the insurer of the property against its loss.
Upon the question being put, "Shall this judgment be reversed ?” the members of the court voted as follows :
For reversal: Senators Barlow, Burnham, Deyo, Johnson, Lott, Putnam, Sanford, J. B. Smith, S. Smith, Spencer, Talcott, Wheeler, Wright—13.
For affirmance: The Chancellor, and Senators Beers, Emmons, Hand—4.
Judgment reversed.