Dayton v. Lynes, 30 Conn. 351

Dayton v. Lynes

30 Conn. 351 | Conn. | 1862

Sanford, J.

The equities of the plaintiff’s case are quite apparent, and we are glad to find that there is no stubborn rule of existing law which requires us to ignore or disregard them.

We think the maxim “ actio personalis moritw cum persona,” which has been pressed upon our attention with so much zeal and ability by the defendant’s counsel, is inapplicable to a case like this. It was said by Lord Mansfield, in the leading case of Hambly v. Trott, Cowp., 371, that the maxim was not generally true, much less universally so, and that the law was then unsettled as to the kind of personal actions to which it should be applied; but, upon a review of all the cases, he came to the conclusion that where the cause of action is money due, or a contract to be performed, or gain or acquisi*355tion of the testator by tbe work or labor or property of another* or a promise of the testator express or implied, the action (by which he obviously meant the cause of action) survives 5 but that where the cause of action is a tort of arises ex delicto* supposed to be by force and against the king’s peace, the action dies ; and as to the form of action, that where the defendant if alive could have waged his law, or where the declaration must be quare vi et amis et contrapacem, or where the plea must be that the testator was not guilty, no action can lie against the executor, because upon the face of the record the cause of action arises ex delicto, and all private criminal injuries or wrongs, as well as public crimes, are buried with the offender. Now it is not to be denied that the criteria propounded by Lord Mansfield have ever since been generally applied ; but tested even by them this suit ought not to abate. The cause of action, though it arose from the default of the deputy sheriff, and therefore arose ex delicto, yet could with no propriety be charged or supposed to have been committed with force or against the peace. It is obvious too from the context that the torts or delicia referred to by Lord Mansfield were those of the defendant’s testator, not of a third person. And besides, the instances put by Lord Mansfield in which the action dies, imply the commission by the deceased of a positively wrongful act. In this action too the declaration is not and ought not to be “ quare vi et amis.” Upon the face of the record indeed the cause of action arose ex delicto, but not ex delicto of the deceased sheriff. There was no private criminal injury or wrong or public crime by him committed, to be “ buried with him ; ” and under no plea could the issue.be, as Lord Mansfield said it was in Hambly v. Trott, to try the guilt of the testator or intestate. Indeed this case seems to fall more appropriately within the class mentioned by Sergeant Williams, in note 1 to 1 Saunders’ R., 216 a, where he says the rule never extended to such personal actions as were founded upon any obligation, contract, debt, covenant, or any other duty to be performed, for there the action survived. Here there was a duty to be performed by the deputy sheriff, 1o wit, to keep the goods attached, which duty he neglected, *356and then the statute made the sheriff responsible, not for his own default, but for the deputy’s.

We have found no case in which it has been held that the action or cause of action died, or, as Lord Mansfield expresses it, was buried, with any one but the tort-feasor himself, and to him alone the maxim seems to refer. Suppose a father becomes bound by deed or simple contract for the fidelity, as cashier of a bank, of his minor son, that the son embezzles the money of the bank, and that then the father dies. Can the father’s executor escape from liability to answer for that default under the maxim in question ? Whether if the son in that case, or the deputy sheriff in this, had died pending a suit against them, or before its commencement, an action could be maintained against their representatives, we need not decide.

At common law the deputy sheriff in the execution of process was but the agent, servant and bailiff of the sheriff, to whom all processes were directed ; but under our system deputy sheriffs are officers as distinctly recognized by law as the sheriffs themselves. Their appointment is provided for and regulated by law, and they are removable by the county commissioners. And prior to the revision of our statutes in 1849, they could execute none of the duties of their office until their appointment had received the approbation of the county court. Stat., ed. 1835, p. 487. A deputy sheriff duly appointed and approved now executes all the duties of his office entirely independent of the sheriff, and not as his bailiff or servant. Writs may be directed to him alone without namiifg the sheriff, and by the express provisions of the statute he has the same powers as the sheriff himself. The negligences and defaults of the deputy, therefore, so acting independently of the sheriff, on his own authority derived from the law itself and not from the sheriff, ought not to be considered or treated as the personal torts or defaults of the sheriff; and hence, we suppose, the express provisions of the statute making him responsible for them were’enacted by the legislature. The condition of the sheriff is like that of a surety for the fidelity of his deputy, rather than that of a principal tort-feasor *357who by word or deed has himself participated in the commission of the wrong. The default is that of the deputy alone, but the statute in aid of the injured party makes the sheriff responsible for that default. And thus the reason given for the maxim, to wit, that all private criminal injuries as well as public crimes are buried with the offender, fails, for the offender who is buried is the deputy and not the sheriff.

By a statute enacted in 1804, and continued in every revision of our statutes down to that made in 1849, it was provided that on the death of any sheriff his deputies should continue in office until his successor should be appointed and assume the exercise of his office, though the term for which such deputy’s appointment was made should expire in the mean time. And the statute provides that “ the defaults and misfeasances of such jailers and deputy sheriffs, in the mean time as well as before, shall be adjudged a breach of the bond entered into by any sheriff,” and that “ his estate shall be liable therefor.” Stat., ed. 1808, p. 607. In the revision of 1849, p. 581, the words “ as well as before ” were di’opped out of the enactment, leaving the section in all other respects as in the prior revisions. Why those words were then omitted we have not the means of knowing with certainty, but we think it reasonable to suppose it was because the revisors and the legislature thought that the sheriff’s liability for the defaults of his deputies committed in his life time, was adequately provided for by the 13th section of the same statute, which enacts that sheriffs “ shall be responsible for the neglects and defaults of their deputies in the execution of their office,” since it is impossible to discover any good reason for making the sheriff’s estate responsible for defaults committed after his death which would not apply with equal or greater force to those committed in his life time. The provision in the act that the sheriff’s estate shall be liable for the defaults and misfeasances of his deputies is still retained, and we think the legislature intended to give to the party injured by the deputy’s default, not only such indemnity as the sheriff’s official bond might afford, but also a cumulative remedy by a direct resort to his estate in the ordinary mode.

*358Upon the whole we think this is not one of those personal actions which die with the original party, that the plea in abatement ought to have been overruled, and consequently that there is manifest error in the judgment complained of.

The judgment of the superior court is therefore reversed.

In this opinion the other judges concurred.