Jackson ex dem. Scofield v. Collins

3 Cow. 89 | N.Y. Sup. Ct. | 1824

Curia,

per Savage, Ch. J.

It is objected, 1, that no title was shown in Robb subsequent to the judgment. Title was in Robb the 2d January, 1818, and judgment August 30th, 1819. The presumption is, therefore, in the absence of all proof to the contrary, that it continued in him during the intermediate time. Besides, had the objection been taken at the trial, that fact might have been shown.

9. It is objected that Lee, as deputy to Adams, had no Tight to execute a deed after Adams was out of office, Lee being no longer deputy. It is not denied that during Adams’ continuance in office, the deputy had authority to do any act which his principal could do in his official capacity, except the appointment of deputies, (and vid. Parker v. Kett, 1 Ld. Raym. 659, and S. C. 1 Salk. 95.) But it is contended that the authority of the deputy ceased when the new Sheriff had •taken the office upon him. . In my opinion, the authority of the deputy is limited by the duration of the authority of his principal. An execution against the .property of a defendant, partly executed by the old Sheriff, shall be completed by him, and in relation to any such execution in the Sheriff’s hands, when he goes out of office, he continues Sheriff, and may act by deputy, as if he was still in office. He is in office quoad hoc, and the acts of a deputy in relation to such an execution are the acts of the Sheriff himself. Even in the case of a ca. sa. upon which the defendant has been arrested, and is imprisoned, it is optional with the old Sheriff whether he will transfer the prisoner to the new Sheriff. The old Sheriff has a right to retain the custody of the prisoner, and complete the execution of the writ. (Hempstead v. Weed, 20 John. 64.)

3. There was no adverse possession shewn, to defeat the operation of the deed, either from the Sheriff to Wadhams, or from Wadhams to the lessor of the plaintiff.-

4. It is made a point, that Wadhams was a mere trustee for Scofield, and that he, being a deputy of the Sheriff at the time of the sale, was prohibited by statute from purchasing. The statute is, “ that it shall not be lawful for any Sheriff, or other officer, to whom any such execution shall be directed, or any of their deputies, or any person for them or either of them, to purchase any goods or chattels, lands or tenements, at any sale, by virtue of any execution, and all purchases so made by them, or any of them, or for the use of them, or any of them, shall be void.” Admitting, as the plaintiff does, that Wadhams purchased for the use of Scofield, the purchase comes within the letter of the act, but it could never have been the intention of the legislature to have prevented a Deputy Sheriff, when plaintiff in an execution, from bidding, in order to secure his money. The object was to prevent abusq —that tiie Sheriff or his deputies should not be allowed to, become purchasers at their own sales, and thereby be induced to conduct corruptly in relation to them. But surely it was n<2vev intended to place those persons in a worse situation than others, as to the collection of their own demands. “ Whenever the intention of the makers of a statute can be discovered, it ought to be followed with reason and discretion in the construction of the statute, although such construction seem contrary to the letter of the statute.” (Bac. Ab. tit. Statute, (I) 15 John. 380, per Ch. J. Thompson.) A thing which is within the letter of a statute is not within the statute, unless it be within the intention of the makers. This proposition is fully established and illustrated by the cases cited on the part of the plaintiff.

I am, therefore, of opinion, that Scofield had a right to bid and purchase, bona fide, as we are to presume he did in this case ; for fraud, of any kind, is not imputed. The plaintiff, is accordingly entitled to judgment.

Judgment for the plaintiff.