Majority
p. 41The People against Brown, late sheriff of Schoharie. UTICA, Aug. 1826.
Headnote
The defendant being brought up on attachment for not returning a fi. fa., in answer to the interrogatories filed, said that the fi. fa. had been received by his under sheriff ; and that the money had been collected ; and that he had not returned the execution ; but did not say, whether he had received notice of a rule to make the return ; and the attorney for the plaintiffs had inadvertantly omitted an interrogatory to that point.Jas. Edwards, for the plaintiffs,
moved to amend by inserting this interrogatory.
M. T. Reynolds, contra,
insisted that the amendment was not admissible’:'.hut
Interrogatories, filed on the return of an attachment, amended by inserting an additional interrogatory.
The sheriff is liable to an attachment for not returning process pursuant to a rule ; though it never came to his own hands; but only to the hands of his deputy.
The Court allowed it.
This being made, the defendant admittted notice of a rule to return tbe fi.fa. But then,
p. 42
Reynolds submitted whether he should not be discharged, on the ground that the execution and the money collected had not come to his own hands ; but the hands of his under sheriff. And he cited The People v. Waters, (1 John. Cas. 137 ; Col. Cas, 76, S'. C. ; The People v. Gilliland, 7 John. Rep. 555 .) But
agreed that this was no objection. They said the remedy by attachment, although in form a criminal, was in truth but a civil proceeding; and the sheriff was liable for the act of his deputy, the same as in a civil action ; that The People v. Gilliland went upon the very great delay, and the death of the deputy. The case cited from Johnson’s and Coleman’s cases, has not been followed. The court look to the sheriff. They do not know the deputy in this, and the like proceedings. The sheriff must stand committed, till the money and costs are paid,
Rule accordingly.