48 N.Y. 163 | NY | 1871
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *165 After the deputy sheriff Houghton had returned the execution in the case of Robinson Parsons v. Thomas B. James to the clerk's office, by the consent of the attorney for the plaintiffs therein and of the county clerk, he procured the same from the clerk's office and erased therefrom the return he had made thereon. He then made the levy and sale, and realized the money recovered in this action. He levied upon and sold the property, claiming to act as deputy sheriff.
This execution was not absolutely void in the hands of the deputy. It was still process of the court, and was merely irregular. The court, upon application of the deputy sheriff, could have authorized its withdrawal from the clerk's office and the cancellation of the return and filing, and it would then have been valid and regular process in his hands. (Barker v.Bininger,
Hence, the deputy sheriff realized this money upon process simply irregular; and this being so, the defendant, as sheriff, is liable for it. In The People v. Dunning (1 Wend., 16), a deputy sheriff collected money upon an execution which had been issued without seal. The deputy kept the money and was insolvent. The court say: "The only question is, whether the precess is void or erroneous? The sheriff supposed it void, and that the sureties of the deputy were not responsible to him for the money received on the execution. This is a mistake. The process was erroneous and not void, and, therefore, amendable; and the money having been received by the deputy, colore officii, his sureties are liable, and the sheriff is responsible to the plaintiff. The party not having applied to set aside the execution, the sheriff cannot avail himself of any defects in it, and must pay the money or stand committed." In Walden v. Davison (15 Wend., 575) *167 the point decided as embodied in the headnote is as follows: "Where the deputy of a sheriff receives an execution commanding, not his principal, but the sheriff of another county, to make the money for which the process issues, the deputy may refuse to execute the writ; but if he does proceed and collect the money, having become possessed of it under color or by virtue of his office, his principal is liable to the plaintiff, for the money thus collected, in an action for money had and received. The execution in such case being avoidable merely, is amendable." The execution, in the body of it, commanded the sheriff of Cattaraugus instead of the sheriff of Allegany, of which Davidson was the sheriff.
In this case the deputy sheriff could have left the execution in the clerk's office and have stood upon the return he had made, and even after he had got it back from the clerk's office he could have refused to have acted under it on the ground that it would not protect him as against the defendant in the execution. But having taken the execution and acted upon it, he cannot now set up its irregularity. Having treated it as valid process, neither he nor his principal can refuse to answer for the money.
It is not true, as claimed by the learned counsel for the appellant, that a sheriff is not liable for acts of his deputy done by color of his office merely, and that he is liable only for those acts of his deputy which he does strictly by virtue of his office. The true rule is laid down by Mr. Justice BRONSON, in Walden v. Davison, supra, as follows: On ascertaining whether the sheriff is answerable for the acts of his deputy, the question is whether the latter did an official or mere personal act. If the act is personal only, and does not relate to his duty as an officer, he is not the agent or servant of the sheriff; but if he execute process under color or by virtue of his office, the sheriff is answerable for the consequences. It is not necessary to charge him that the act of the deputy should in all cases be lawful, or one which he might rightfully do under the process, if it were so. The *168 sheriff would not be liable where the deputy takes the property of some other person than the judgment debtor.
Within the rule here laid down, which is fully sanctioned by principle and authority, the sheriff in this case is answerable for the act of his deputy, and must respond for the money in his hands. The judgment should be affirmed with costs.
Dissenting Opinion
I cannot concur in the opinion expressed, that this execution "was not absolutely void in the hands of the deputy." In the case of Walden v. Davison (15 Wend., 575), relied upon as authority to sustain it, the attorney who issued the execution had the right to issue it, and the sheriff who received it had the right to receive it; it was not void, but merely irregular, for want of adherence to prescribed rules in issuing it, the result of an innocent mistake; in this case the execution had been returned and filed in the office of the clerk of the proper county, and thus placed beyond the legal control of the attorney who issued it, or the deputy who returned it, having become in all respects functus officio; it became then a part of the official duty enjoined upon the clerk to preserve it in the condition in which he received it (1 R.S., 5 ed., 866, § 103), until the court, whose process it was, should otherwise direct. The neglect of this duty (if he permitted the deputy to take it from his files), was a misdemeanor on his part. (3 id., 979, § 53.) And if the deputy, who after procuring the execution from the clerk's office erased his return and the clerk's filing therefrom with intent to defraud, he was guilty of forgery. (3 id., 950, § 25, subs. 1 and 2.) The case is without evidence to show that the defendant was in any way informed of, or that he ever sanctioned these wrong acts of the deputy; and it appears that the deputy retained in his own hands the funds collected, and refused to comply with the plaintiff's demand to pay them over. "Men seldom do unlawful acts with innocent intentions; the law presumes every act in itself unlawful, to have been criminally intended until the contrary appears;" and the burden of disproving a criminal intent is thrown upon the accused. *169 (2 Bishop on Criminal Proceedings, 615.) The presumption of a criminal intent arising from the unlawful acts, is, in this instance, strengthened by the circumstance of his retaining and refusing to pay over the funds collected, but it is quite unnecessary to determine the degree of wrong committed by him. It is sufficient, to render the execution void, that the act of taking it from the clerk's office and erasing the return indorsed upon it was impliedly, at least, forbidden by law (Clark v.Lyman, 10 Pickering, 45, 48), and no more the act of the sheriff, because his deputy proceeded under color of office, than if he had been destitute of process (ex parte Reed, 4 Hill, 572, 573), and hence the judgment should be reversed.
For affirmance, EARL, HUNT and LEONARD, CC.
For reversal, GRAY, C.
LOTT, Ch. C., not voting.
Judgment affirmed.