In re Chamberlain — 42 Barb. 281

Majority

p. 281

In the matter of the application of Wm. Chamberlain and others, for leave to prosecute the official bond of A. F. Campbell, Sheriff of Kings county.

Headnote

The recovery of a judgment against a sheriff for an escape, will establish the liability of the sheriff, so as to authorize an application under the revised statutes, (2 JR. 8. 476, §§ 1, 2, 3,) by the party injured, for leave to prosecute the official bond of the sheriff; provided there has been no stay of proceedings ordered upon such judgment. But if the proceedings have been stayed by order of the court, no such application can be made during the continuance of the stay.

THE relators having recovered a judgment against the sheriff of Kings county for the escape of a judgment debtor committed to his custody, applied, ex parte, to the supreme court at special term for leave to prosecute the official bond of the sheriff, for an escape. The application was founded on a certified copy of the bond, accompanied by proof showing the recovery of such judgment, and that no satisfaction of the same had been received, and, thereupon, the court ordered that the bond be prosecuted. The sheriff then applied to have said order vacated, alleging and showing that after the said judgment had been rendered against him, the court had, by rule, stayed all proceedings thereon until final judgment should be rendered in a suit which had been commenced by the sheriff against the sureties on the bond for the limits given to him; and if such judgment should be in favor of the sheriff, until the return of the execution thereon, but not to exceed sixty days. Such stay was in full force when the order authorizing the prosecution of the bond was obtained. The court denied the motion to vacate the order, and in the rule entered, it was stated that it was denied as a matter of law, and not of discretion.

From that rule the sheriff appealed.

Philip S. OrooTce, for the appellant.

John Sessions, for the application.

p. 282

By the Oourt,

The question presented herein for our decision is whether the relators, on the facts disclosed on the last motion, were entitled to prosecute such bond. The application was made and granted under the following provisions of the revised statutes, (vol. 2, p. 476;)

§ 1. Whenever a sheriff shall have become liable for the escape of any prisoner committed to his custody, or whenever. he shall have been guilty of any default or misconduct in his office, the party injured thereby may apply to the supreme court for leave to prosecute the official bond of such sheriff.

§ 2. Such application shall be accompanied by proof of the default or delinquency complained of, and that no satisfaction for the same has been received, and by a certified copy of such official bond.

§ 3. Upon such application and proof, the court shall order that such bond be prosecuted.

One of the requirements necessary to confer the right in question, is that the sheriff shall have become liable for the escape; and, if the proceedings upon the judgment recovered against him by the relators had not been stayed, the judgment would have established such liability; but, as has been shown, an order staying all proceedings thereon wras in full force when the relator’s application was made. Such stay was granted under a provision of law which provides, that in case the party at whose suit any person shall have been confined to the liberties of a jail, shall refuse or neglect to take an assignment of the bond executed by such person on being admitted to such liberties, and shall prosecute the sheriff for the escape of such person, “the court in which such action shall be pending shall, by rule, stay all proceedings upon the judgment against such sheriff until he shall have had a reasonable time to prosecute the bond taken by him, and to collect the amount of any judgment he may recover thereon.” (2 B. S. 436, § 59.) The effect of the rule made under this provision is to qualify the sheriff’s liability so far as to re

p. 283

Heve him from the operation of the judgment so long as such stay of proceedings is in force.

[Orange General Term,

September 12, 1864.

The provision of law first referred to, regulating the right to prosecute the sheriff’s bond, contemplates an existing present liability on the part of the sheriff.

In requiring proof on the part of the applicant that no satisfaction for the sheriff’s default or delinquency has been received, it is apparent that the right to demand satisfaction must exist. The stay of the relators’ proceedings deprived them of that right jn the present case.

If it was competent to sue the sheriff’s official bond, the stay of proceedings would, by the judgment thereon, become ineffectual, for the relators might enforce that judgment, and thus in reality obtain satisfaction of the judgment in the original suit for the escape, in direct contravention of the statute, or at least the rule under it, inhibiting the collection thereof.

The provisions of the different statutes above cited should be so construed as to give all of them full effect; and that can be done by holding that the sheriff, by reason of the stay of proceedings, was not chargeable with such a liability as to authorize a prosecution of his official bond during its continuance.

The order appealed from should, therefore, be reversed, with $10 costs of the appeal, and an order should be made vacating the original order, with $10 costs.

Sorugham, Lott and /.