Shepard v. Hoit — 7 Hill & Den. 198

Majority

p. 198

Shepard vs. Hoit.

Headnote

It is the official duty of a sheriff to pay over money which he has collected on execution, and if he omits to do so an action will lie against him.

The action may be either assumpsit or case; but whether the one form or the other be adopted, if the sheriff succeeds, he is entitled to double costs.

Though the action be assumpsit, and the declaration do not name the defendant as sheriff, he has the same right to plead the three years’ limitation provided by 2 JR. S. 896, § 22, as if the action had been case. Per Brqnson, @h. J.

The plea must be special, however, averring that the defendant was sheriff, and that the action was brought to charge him for the alleged omission of an official duty. Per Bromson, Ch. J.

A cause was noticed in November, for a circuit to be held on the 12th of April following ; and on the 29th of March preceding the circuit, the defendant served an order to file security for costs in twenty days, and that in the meantime all proceedings on the part of the plaintiff be stayed. In consequence of this order the . pause was not put upon the calendar for the April circuit, but the defendant at

p. 199

tended with his witnesses, and at a subsequent circuit obtained a verdict in his favor. Held, that he was not entitled to costs for attending the April circuit, though the plaintiff omitted to countermand his notice of trial.

Where the plaintiff made a cash, which, after having been first argued before the circuit judge, and a new trial denied, was then argüed before this court on appeal, with the like result, and the questions in both instances were the same; held, that the defendant was not entitled to costs for brief and points on each argument, but only on one.

Re-taxation of costs. The defendant had been sheriff of the county of St. Lawrence; and this was an action of assumpsit to recover money which one of his deputies had collected on an execution. The plaintiff was not the person in whose favor the execution issued; but he brought this suit on the ground that he was entitled to the money. On a trial in Onondaga, where the venue was laid, a verdict was rendered for the defendant, and the taxing officer allowed him double costs.

On the 25th of November, 1840, the cause was noticed for trial for a circuit to be held on the 12th of April following. On the 29th of March the defendant served ah order that the plaintiff (being a non-resident) file security for costs within twenty days, and that in the meantime all proceedings on his part be stayed. In consequence of this order the cause was not put upon the calendar for the April circuit. The defendant attended the circuit with his witnesses, and the taxing officer allowed him the costs of the circuí tí Security for costs was filed on the 14th of April, the third day of the circuit, which the plaintiff’s attorney swore was as soon as the order could be complied with.

After a trial and a case made, there was first an argument before the circuit judge on the plaintiff’s motion for a new trial, and then an argument of the same matter in this court by way of appeal from the decision of the circuit judge. The plaintiff failed in both instances, and the taxing officer allowed the defendant brief and points for each argument.

E. A. Bfatim, for the defendant, moved for a re-taxation of costs.

D. Burwell, for the plaintiff.

p. 200

By the Court,

The sheriff is entitled to double costs when he succeeds in an action brought against him for or concerning any act done by him by virtue of his office, or for or concerning his omission to do any act which it was his official duty to perform. (2 R. S. 617, § 24.) It is the official duty of the sheriff to pay over money which he has collected on execution; and if he omits to do so, an action will lie against him. Assumpsit may be brought in such a case. (Armstrong v. Garrow, 6 Cowen, 465.)^[1] But the right to double costs cannot depend on the form of the action which the plaintiff may elect to bring, where the suit is in fact brought to charge the officer for an omission of official duty. I think the taxing officer was right on this question. It is' said that this doctrine will deprive the sheriff of the benefit of the short limitation in suits brought against him for omissions of official duty. (2 R. S. 296, § 22.) That is an argument, for so much as it is worth, against allowing the action of assumpsit to be brought in such a case, which is not an open question. But although the sheriff is sued in assumpsit, and without naming him as sheriff, I see no reason why he may not plead the three years’ limitation. It is true that the plea would have to be special. The defendant would first aver that he was sheriff, and that the action was brought to charge him for the alleged omission of an official duty; and then he might say, that the suit was not commenced within three years after the cause of action accrued. I cannot doubt that such a plea would be good, although by the general statute actions of assumpsit are not barred in less than six years. We must look at the substantial rights of the parties, rather than the forms in which those rights are asserted.

The defendant prevented a trial at the April circuit, 1841, and I see no reason why he should be paid for attending it. He waited so long before demanding security for costs that the plaintiff could not, by any diligence, have got the order to stay proceedings discharged in time to try the cause at that circuit. If security had been given the day the order was served, the

(a) (a) See Lillie v. Hoyt, ( 5 Hill, 395 .)

p. 201

twenty days which the defendant had to except to the sufficiency of the sureties would have carried the cause over the circuit; and the order to stay proceedings is not discharged until the sureties ¡justify. (2 R. S. 620, §§ 1, 3, 5, 6.) It is said that the plaintiff should have countermanded the notice of trial. But that was not h'ebessáry after the defehdant had Obtained an order which destroyed the effect of the hotice. The charges for attending the birctiit ih question mhst be stricken out of the bill.

The questions to be discussed Oh the cáse were the same before the cir’cuit judge and in this court, and I think Only one charge should be allowed for brief or points on the argument.

Motion ¿ranted.