| N.Y. Sup. Ct. | Oct 15, 1818
delivered the opinion of the court.
Although the deputy sheriff declared, when he paid the amount due to the creditor, “ that the execution was not intended to be satisfied,” that declaration could not affect the right of the creditor to return the money so paid him, in satisfaction of his claim upon the execution. It was not a conditional payment, nor advance of money by the deputy sheriff to the creditor.
The fair construction of that conversation is, that the deputy meant to express his determination not to waive the rights which he had acquired, under the agreement with the plaintiff in this suit, of using the fi. fa. for his protection as endorser. The creditor received his money, and gave a receipt for it, to the officer, without any stipulation or condition. The debt must, therefore, be deemed satisfied as to the judgment creditor; and that fact being established, the law, founded on wise policy, considers the officer as functus officio. The direct and sole object of the fi. fa. was to raise the money, to satisfy the judgment creditor : that object being attained, the power conferred by the writ is spent; and the officer is not permitted to use it for enforcing any bargains in which he may think himself aggrieved.
In the case of Weller v. Weedale, (Noy, 107.) it was decided, that if a sheriff satisfy the debt out of his own money, he cannot afterwards detain the goods of the debtor on fi.
To allow any man to wield the process of our courts in his own favour, in order to exact such a measure of justice as he may think due to himself, would not only lead to oppression and abuse, but would tend to subvert the foundation of private rights, and of civil liberty.
The deputy sheriff, in this case, probably acted from benevolent motives ; but the agreement must be pronounced illegal. It was well remarked by Ch. J. Kent, in the case of Reed v. Pruyn and Staats, that “ such humanity is imposing ; but it may be turned into cruelty.”
We are clearly of opinion, that the evidence offered by the defendant was properly excluded, and that an action of trespass is a proper remedy in this cause.
Judgment for the plaintiff, on the bill of exceptions.