Seeley v. Birdsall

| N.Y. Sup. Ct. | May 15, 1818

Per Curiam.

An action on the case against a sheriff for a false return on an execution, is within the first section of the statute, (1 JV L. 155.) “ for the more easy pleading in certain suits and, consequently, the burthen of the proof, that the cause of action arose within the county wherein the venue is laid, is thrown on the plaintiff, and the failure to give that proof entitled the defendant to a verdict of not guilty.

The words of the statute are very plain and perspicuous. If any action upon the case be brought against any sheriff, &c. for or concerning any matter or thing by him doni, by virtue of his office, the said action shall be laid within the county, where the trespass or fact be done and committed, and not elsewhere; and if upon the trial, the plaintiff shall not prove that the cause of his action arose within the county wherein such action is laid, in every such case, the jury which shall try the same, shall find the defendant not guilty, &c.

The case of Griffith v. Walker (1 Wils. 336.) which considers an action against a sheriff for a false return as transitory, was prior to the statute rendering actions against sheriffs for acts done by virtue of their offices local. The true distinction is between an act done colore officii, and virtute officii; in the former case the sheriff is not protecled by the statute, where the act is of such a nature that his office gives him no authority to do it; but where in doing rbm. within the limits of his authority, he exercises that authority improperly, or abuses the confidence which the láw reposes in him, to such cases the statute extends.

New trial granted.