38 Barb. 18 | N.Y. Sup. Ct. | 1862
This action was brought against the defendant as sheriff, for the neglect of his deputy in not serving a body execution in his hands against one Henry B. Tuffts. There was a judgment against Tuffts, in favor of one Alonzo Curtis, on which an execution against the defendant’s property had been issued and returned, no property found. Execution was then issued against his body, and placed in the hands of the deputy on the 20th of August, 1857. Tuffts continued to reside in the county until the 20th of September, 1857, when he left the state, and has not since returned. The evidence tended to show that the deputy, while he had this execution in his hands, knew where
"! The plaintiff is the assignee of the judgment, and of this cause: of action against the defendant. It is claimed by the defendant’s counsel that the cause of action is not assignable, as it was at the trial, when a nonsuit was asked upon that ground, which was refused. Whether the cause of action is assignable depends, as it would seem, mainly upon the question whether it would survive to the executors or administrators of 'the ■ assignor in case of his death. (Zabriskie v. Smith, 3 Kern. 322. McKee v. Judd, 2 id. 622. The People v. Tioga Com. Pleas, 19 Wend. 73.)
■' If it-was a wrong done to the property, rights, or interests of the assignor, the right of action would' survive to the executor or administrator. (3 R. S. 5th ed. 746, § 1.) This clearly does not fall within any of the exceptions mentioned in the several sections of the act.
It seems to me that upon the authority of numerous adjudged cases, this must be held to be an injury done to the estate of the assignor. It has been held that an executor could maintain case for a false return to final process. (Williams’ Ex. v. Cary, 4 Mod. 403. S. C., 12 id. 71.) This was upon the ground that it was an injury to the estate. In' that case the under sheriff had actually levied more than he had' returned. - And so for an escape on final process. It seems to have been sometimes doubted whether the executor could have an action against the sheriff for an escape upon' mesne process. But upon principle, as Mr. Chitty says, he may. (See 1 Chit. Pl. 79, 80, and cases there cited.) The principle upon which the action is: maintained for- the escape is, that the body is a pledge for the debt, and by the loss of the pledge the estate is injured. In Paine v. Ulmer, (7 Mass. Rep. 317,) it was held that an action against a
This is a much stronger case, as it appears by the evidence that the body of the defendant in the execution might have been taken. It is apparent, therefore, that the judgment creditor was deprived of the satisfaction of his judgment by the neglect of the defendant’s deputy. The law presumes damage in such a case, and the statute gives an action against the sheriff to recover it. (3 R. S. 5th ed. 739, § 98.) ■ The damage was of course to the estate of the creditor, and prima, facie was the full amount of the judgment. (Pardee v. Robertson, 6 Hill, 550.) Taking the body of the debtor in execution is the highest form of satisfaction of a judgment, It is clear, I think, that this ivas a wrong to the property, rights, or interests, of the judgment creditor, which would have survived to his executors or administrators,- and • was, therefore, assignable,
It is claimed by the defendant’s counsel that a cause of action does not survive to the executor or administrator of the party injured, except in cases where it will sürVivé against the executor or administrator of the person who was guilty of the wrong; and that an action of this kind could not be maintained against the defendant’s executors or administrators. It would seem, from the reading of the statute, that the cause of action for the same class of wrongs, precisely, survives alike in favor of the executors and administrators of the injured party, and against the executors and administrators of the wrongdoer, Such is the plain reading of the stat
The statute makes- no such distinction. The action is there plainly given against the executors or administrators of the wrongdoer, “for wrongs done to the property, rights or interests of another, for which an action might be maintained against the wrongdoer.” The action is for the wrong done to the property or interests of another, and not for the benefits accruing to the property or interests of the wrongdoer. I can see no good reason for any such distinction, in law or morals, and it is difficult to understand how it ever could have obtained under our statute. If the executors or administrators of the wrongdoer were chargeable personally, there would seem to be a good reason for holding that they should not be made liable unless some funds had come to their hands by means of the wrong of their testator or intestate. But as no such consequence attaches against them, I do.not see why the plain letter and reading of the statute should be thus perverted. This distinction was taken at an early day in England, under a statute wholly different in terms from ours, and when the courts were determining what cases, not falling within the letter of the statute, came within the equity and intention of it. The distinction thus taken has been followed by our courts, I think, without observing the difference between our statute as it now stands, and our former statute, and the English statute under which it was first taken.
But whether this distinction is well founded or not, it does not help the defendant. For it is equally well settled that the wrongdoer is liable himself, to the executor or adminis
The remaining question is, whether the defendant should have been allowed, by way of mitigating damages, to prove the pecuniary circumstances and condition of the defendant in the execution. The offer was to prove that such defendant was, at the time the judgment was rendered against him, and at all times afterwards, utterly insolvent, and without any means whatever to satisfy the debt, so that nothing could have been gained by his arrest. This offer was overruled, and exception duly taken. It has been repeatedly held, in actions against a sheriff for not returning,- or not collecting, an execution against property, that the evidence thus rejected was proper in mitigation of damages. (Ledyard v. Jones, 3 Selden, 550. Humphrey v. Hathorn, 24 Barb. 278. Bank of Rome v. Curtiss, 1 Hill, 275. Pardee v. Robertson, 6 id. 550.) The same evidence has also been held admissible, in actions for an escape, on mesne process. (Patterson v. Westervelt, 17 Wend. 543. Potter v. Lansing, 1 John. 215. Kellogg v. Manro, 9 id. 300. Burrill v. Lithgow, 2 Mass. Rep. 526. Brooks v. Hoyt, 6 Pick. 468.) I see no good reason why the rule should not be the same in actions on the case, for neglecting to take the body of the defendant in execution.
It is urged on behalf of the plaintiff, that the body of a defendant in execution, being in law the highest form of satisfaction of a judgment, is equally so, whether the defendant is rich or poor; and that it is nothing to the sheriff what kind of satisfaction a plaintiff may elect to take of his judgment. But the conclusive answer to this is, that an action of this kind is given against the sheriff by statute, “ at the suit of any party aggrieved, for the damages sustained by him.” This means pecuniary damages. Hence, if it should be made to appear that satisfaction in that form alone could be of no pecuniary advantage to the plaintiff, by reason of the poverty of the defendant, that fact would seem to be
This being in nature strictly an action on the case, to
The evidence offered was improperly excluded, and there must consequently be a new trial, with costs to abide the event.
Johnson, Welles and J. Ct Smith, Justices.]