Stillman v. Squire

1 Denio 327 | Court for the Trial of Impeachments and Correction of Errors | 1845

Per .Curiam.

We are not referred to any case holding it to be necessary in a suit against a sheriff for the acts of his deputy to describe him as sheriff, and we see n o reason why it should be so held. The object of the suit is to establish a personal and not an official liability, and the judgment, if one should be obtained, must be satisfied out of the defendant’s individual property. The suit would not abate by his removal or the expiration of his term of office; and it could have been brought after he had ceased to be sheriff, as well as before. When in cases like this his name of office is added, it is merely descriptio persones.

A demand and refusal is not necessary to be proved where the taking was wrongful. (Cummings v. Vorce, 3 Hill, 282; Pierce v. Van Dyke, 6 id. 613.) The act of the deputy in seizing the property was in judgment of law the act of the defendant, and his possession was the defendant’s "possession. We think the circuit judge erred in nonsuiting the plaintiffs, and the nonsuit must be set aside.

New trial granted.