Pond v. Leman

45 Barb. 152 | N.Y. Sup. Ct. | 1865

By the Court, Johnson, J.

The plaintiff was nonsuited at the trial upon the ground that the defendant, as sheriff, was not liable for the acts of his deputy in levying upon the goods of persons not parties to the execution, it not appearing that he had in fact directed or ratified the act of the deputy in so levying.

It has been long well settled that the sheriff is liable civiliter for all the acts of his deputies done in the usual course of their business of deputies, prescribed by law. The deputies are all servants of the sheriff, and in law they are considered but one officer. (Allen on Sheriffs, 81, 86.)

That the sheriff is liable in an action of trespass vi et annis for the act of his deputy, in taking the goods of one person to satisfy thé debt of mother upon execution has been uniformly held to be law, at least ever since the case of Ackworth v. Kempe, (Doug. 40,) where the precise point was expressly adjudged. (Grinnell v. Phillips, 1 Mass. Rep. 530. Campbell v. Phelps, 17 id. 244. Tuttle v. Cook, 15 Wend. 274. Walden v. Davison, Id. 575. Curtis v. Fay, 37 Barb. 64. McIntyre v. Trumbull, 7 John. 35.) In the last case the court went so far as to hold the sheriff liable for the act of the deputy in taking more fees on levying an execution than are allowed by law; and this whether the sheriff recognized the act of the deputy or not. (See also The People v. Schuyler, 4 Comst. 173.) The levy of an execution for the purpose of collecting it, by a deputy, is an official, and not a mere personal, act. And for all such acts the sheriff is liable for the act of the deputy, though it turns out that the act is not justified by the process.

[Monroe General Term, December 4, 1865.

There are a class of cases, where the plaintiff in the execution has given the deputy some special directions out of the ordinary line of his duty as deputy, which the deputy has followed, in which it has been held that the sheriff was not liable for such acts of his deputy. This is upon the ground that by following such instructions instead of the line of duty prescribed by law, the deputy became the mere agent of the plaintiff, and his acts personal and not official in their character. But this is no such case. The sheriff is liable for all the acts of the deputy, official in their character, in executing process, whether he knew the deputy had the process or not. It would be a most dangerous and oppressive rule to hold that a 'plaintiff before he could recover of a sheriff for the wrongful act of the deputy, must prove that the former directed or sanctioned the act. There must be a new trial, with costs to abide the event.

Johnson, E. Darwin Smith and James C. Smith, Justices.]