Terwilliger v. Wheeler

35 Barb. 620 | N.Y. Sup. Ct. | 1862

By the Court, Balcom, P. J.

A deputy sheriff is the agent or servant of the sheriff. (Colvin v. Holbrook, 2 Comst. 126.) The levy by the plaintiff, as deputy, upon the raft, in question, was the act of the sheriff. (Sheldon v. Payne, 3 Seld. 453.) He could not have made a valid levy in his own name. All levies and returns by a deputy sheriff must be made in the name of his principal, the sheriff. (Simonds v. Catlin, 2 Caines’ R. 61. Coleman & Caines’ Cas. 354. 23 Wend. 435, 441. 4 Hill, 351. Crock, on Sheriffs, §§ 39, 440, 531.) The possession of the raft by the plaintiff, as deputy sheriff, was, in judgment of law, the actual possession of the sheriff; the rule being that the possession of an agent or servant is the actual possession of the principal or owner. (16 Wend. 354 and 351.) Hence, the plaintiff could not maintain the action on the ground that the raft was taken from his actual possession by the defendants. I am aware that a person who receipts goods levied upon, to the sheriff, may maintain actions therefor against strangers who wrongfully take them from him, although he has sometimes been called the servant or agent of the sheriff. But he holds the goods in his own name, and does no act concerning them in the name of the sheriff. He holds them as bailee of the sheriff, and has such a possession and interest in them as entitles him to sue for them when wrongfully dispossessed. (Edw. on Bail. 61. 16 Wend. 335.) The plaintiff’s counsel seems to think because a deputy sheriff must be appointed by a writing under seal, and must take an official oath, (1 R. S. 877, § 169, 5th ed.) and may be required to give security to the sheriff for the faithful discharge of the duties of his office, (10 Paige, 231, 232,) he is such an officer, and has such an interest in the goods levied upon by him that he can maintain actions in his own name against strangers who wrongfully take them from him. The difficulty in maintaining this position lies in the fact that a deputy sheriff can do no act in his own name, and never professes to do any for himself.' He is only a mere arm or hand of the sheriff, although he tabes an oath and gives security for the faithful execution of the trust reposed in him. If a servant or agent takes an oath or gives security that he will honestly and faithfully do the business confided to him hy his employer, he has no greater rights in or to any property he has charge of than he would have without taking any oath or giving such security.

[Broome General Term, January 28, 1862.

A sheriff or under sheriff may appoint deputies hy parol, without wilting, to do particular acts only, and such deputies need not take an official oath. (1 R. S. 877, § 169, 5th ed.) But I will not pursue these questions further.

The opening of the plaintiff’s counsel showed that the defendants had taken hut one raft, and that the plaintiff never had any possession or control of that, except as a deputy of the sheriff of Delaware county. And as such possession and control were the actual possession and control of the sheriff himself, it follows that the plaintiff was properly nonsuited, and his motion for a new trial should he denied with costs.

Decision accordingly.

Balcom, Campbell and Parker, Justices.]