Prentiss v. Farnham — 22 Barb. 519

Majority

p. 519

Prentiss vs. Farnham, late sheriff, &c.

Headnote

The defendant, who was sheriff of Erie county, by public advertisement, on the 24th of December, 1852, offered a reward of $250 for the discovery and apprehension of the person or persons who murdered J. B. The plaintiff, a constable, on the lStli of January, 1853, arrested one F. without warrant, believing him to be the murderer, and took him to the jail of Erie county. F. was subsequently tried for the offense, and was convicted and executed. In November, 1853, the plaintiff, at the request of the defendant, made application to the board of supervisors of Erie county to raise the amount of the reward and to pay the same to him. One M. claimed a part of the reward, and he and the plaintiff appeared before the board and were heard upon their claims. The hoard allowed the plaintiff $150 and M. $100. An order for $160 was given to the plaintiff, who took it, and received the money from the treasurer, at the same time claiming, however, that he was entitled to the whole amount of the reward, and protesting that he did not receive the $150 in full of his claim. M. received the $100 awarded to him. In an action against the sheriff, to recover the amount of the reward; it was held that the plaintiff and M. having referred their lespective claims to the board of supervisors, and consented that the board should settle their respective rights to the reward, and the board having settled those rights, and the plaintiff having received the amount to which by the decision he was entitled, he had no further claim against the defendant.

VHIS action was brought to recover the amount of a reward offered by the defendant, sheriff of Erie county.' .The • offer was published as an advertisement, thus : “ Two hundred and fifty dollars reward is hereby offered for the discovery and apprehension of the person or persons who murdered John Brown, in the town of Alden, in this county, on the evening of the 21st instant. Dated Buffalo, Dec. 24, 1852.

Leroy Farnham, Sheriff.”

The cause "was tried at the circuit without a jury, and the facts were agreed upon. The material facts may be thus stated. Brown was murdered in November, in the town of Alden, by one Fogerty; the defendant published the advertisement as above; and the plaintiff was informed and believed that such advertisement was published. Upon a complaint duly made on oath, prior to January 1,1853, a police justice of the city of Buffalo had issued his warrant for the arrest of Fogerty, upon the charge of the murder of Brown, and the warrant was de

p. 520

livered to a constable of the county of Erie. The plaintiff was a constable of the town of Amherst, and on January 18, 1853, he arrested Fogerty in the town of Amherst, in said county, without a warrant, and without hearing that any warrant had been issued, and took him to the jail of the county. The plaintiff, prior to the arrest, had been informed, and he believed, that Fogerty was guilty. Fogerty was tried, convicted and executed.

The plaintiff, in November, 1853, at the request of the defendant, made application to the board of supervisors of Erie county to raise $250 and to pay the same to him. . He claimed that sum. One Albert Marshall claimed part of the sum, and the plaintiff and Marshall appeared before the board and were heard upon their claims. The committee on sheriff’s accounts, to whom the petition, of the plaintiff was referred, made a report, coming to the conclusion that the plaintiff’ was entitled to the whole reward offered ; and they recommended that an order be drawn, in favor of the plaintiff, upon the county treasurer for that amount. This report was amended by the board, and Marshall was allowed $100, and the plaintiff $150. An order for the $150 was given to the plaintiff, who took it, and received from the treasurer the money; he, at the time of taking the order, claiming that he wa.s entitled to the whole sum of $250, - and protesting that he did not receive it in full of his claim* Marshall received the $100 awarded to him. Before the commencement of this action, the plaintiff demanded of the defendant the two hundred and fifty dollars, and the defendant refused to pay it. The court, as a conclusion of law, decided that the plaintiff was not entitled to judgment, and judgment was directed to be given for the defendant. The plaintiff excepted, and judgment being perfected, he appealed to the general term*

B. H. Austin, for the plaintiff

A. iSawih, for the defendant.

The defendant insisted that the proceedings by and before the board of supervisors, and the

p. 521

payment to the plaintiff of the $150, constitute a bar to this action. In his answer, after stating that Marshall and the plaintiff each claimed the reward, and that he referred them to the board of supervisors, he states that they submitted to the arbitrament and decision of the board of supervisors their respective claims, &c. He also alleges, in his answer, that he paid the plaintiff $150 in full satisfaction of his claim. His counsel also insisted, upon the argument, that as the plaintiff was a constable, he could not claim the reward. If the defendant is right in his previous positions, it will not be necessary to examine the last.

The defendant was sheriff of Erie county. He offered the reward. There is no question but that he assumed a personal liability. Nevertheless, he relied upon the county for indemnity, and that the board of supervisors would admit and allow in his accounts any sum that should be properly paid out by him in securing the detection and arrest of the criminal. He referred the plaintiff to the board of supervisors, and the plaintiff presented his petition to the board. Marshall made a claim for a part of the sum. And these claimants appeared before the board and were heard, and they submitted to the board their respective claims. Their claims rested upon the reward offered by the defendant. The board of supervisors acted upon these claims as founded upon the reward offered by the defendant, the sheriff of the county. One of the claimants claimed the entire amount of the reward offered, and the other claimed a part of it, upon what grounds does not appear. The supervisors allowed the whole $250. Should the defendant now pay to the plaintiff the $250, or the $100, he would have no claim, equitable or otherwise, upon the county. It seems to me that the plaintiff, when he consented to refer his claim to the board of supervisors, and appeared and prosecuted his claim, and resisted the claim of Marshall to any portion of the reward, thereby consented and agreed to abide by and stand to the decision which the board should make as to the rights of the claimants to the money. He might have refused to submit the question to the board of supervisors, and have resorted to his remedies

p. 522

against the defendant. But having consented to go before the board and submit his claim in competition with the claim of Marshall, and having received that portion of the reward awarded to him, it seems to me that his claim against the defendant, the sheriff of the county, is satisfied, and that he can maintain no action for the whole reward, or for that part not allowed to him by the board. His claiming that he was entitled to the whole sum, at the time he received the $150, and protesting that he did not receive it in full of his claim, will not affect the question. He is bound by the submission of the questions to the board of supervisors and their award and the receipt of the money awarded. If he had not received the money from the county, perhaps he could have maintained an action against the defendant, but he could only have recovered the $150 as awarded by the board of supervisors. The claimants consented that the board should settle their respective rights to the reward, and the board having by their decision settled them, and the plaintiff having received the amount to which, by the decision, he was entitled, he has no further claim against the defendant.

[Erie General Term,

September 8, 1856.

It will not be necessary to examine the question whether the plaintiff, being a constable, could claim the reward. The judgment should be affirmed.

Bowen, Mullett, Greene and Marvin, Justices.]