People ex rel. Kellogg v. Schuyler

The only question presented by the pleadings is, whether the sheriff and his sureties are liable upon his official bond, for a trespass committed by the former in taking the goods.of the relator, in an attempt to execute regular and valid process, issued against the property of another.

The bond was in form to the people of the state ; it was in effect a security, not only to suitors, who might have a direct interest in the action of the sheriff, but .to every citizen who might be injured by his official misconduct. Before and at the time of the alledged trespass, Schuyler was sheriff of the county of Rensselaer. As a public officer, the attachment in question was necessarily and lawfully delivered to and received by him. He assumes to levy and draw up his inventory as sheriff; as sheriff he rightfully summoned a jury, to determine the title to the property seized, and subsequently, in his official character,. [179] received an indemnity and detained the goods, in opposition to the verdict. He received the. attachment, therefore,

It was, however, assumed by Judge Cowen, in Ex parte Reed, ( 4 Hill, 573 ,) that no such distinction was recognized by our law, and that in neither case would the sheriff or his sureties be liable upon his official bond. He remarks, “ that the words of the obligation can not be extended beyond nonfeasance or misfeasance, in respect to acts which by law he is required to perform as sheriff.” This may be admitted: but in the case then before the court, and in the present, the sheriff as the executive officer of his county, received a regular process issued by a court of competent jurisdiction, by which he was commanded to act as sheriff. If he had neglected to act without some legal excuse, it would have been a nonfeasance; if he had acted wrongfully in attempting to obey the mandate, it would have been a misfeasance “ in respect to acts which he was required to perform [180] as sheriff.” The distinction is between a case in which a duty

. The learned judge, in the case referred to says: “ that the words of the obligation are operative for the purpose of obliging the sheriff to act properly, in all those things which come within the scopq of his power or duty.” The answer to this suggestion is, that it is within the power of every officer receiving process, to execute it or to abstain from its execution, for reasons which he can assign, and which the law will recognize; and with this power it is within “ the scope of his duty to act properly, if he elects to act under it at all.” It is true, as Judge Cowen remarks, “ that a trespass is not the faithful performance of the office, or any performance at all.” It is, however, equally true, that the faithful performance of the office was the duty imposed by law upon the sheriff, and guarantied by his sureties. They now insist, in bar of the action, not that the sheriff fulfilled this obligation, but that in violating it he committed a trespass. Again, the learned judge remarks, “ there being no authority, there is no office, nothing official.” If by this we are to understand, that there being no authority for the act complained of as a breach of official duty, there was no office and nothing official, the argument, if sound, would preclude a recovery in any case against the sureties. If an authority could be shown, their defence would be complete ; if there was none, the act would be extra official, and not within the scope of their undertaking.

In Ex parte Chester, ( 5 Hill, 555 ,) the, court directed the prosecution of the official bond of a sheriff and his sureties, in consequence of a false return by the former. This was a misfeasance, for which the sheriff was liable in an action of tort. It might have been argued upon the authority of Me parte Reed, “ that the commission of a tort was not the faithful perform-[181] anee of his office as sheriff, or any performance at all.” The objection was as applicable in one case as the other. It is no

That irregularities of the kind mentioned do not wholly deprive the proceeding of an official character, is manifest from the construction which, in this country and abroad, has been given to statutes framed for the protection of public officers, in reference to pleading, notice and venue. The English statutes and our own refer to acts done “ virtute officii,” and yet they have uniformly been held to extend to acts of misfeasance, whether the remedy against the officer was in case or trespass. (Straight v. Gee, 2 Stark. Rep. 448 ; Reed v. Thompson ; Weller v Toke, 9 East 3664; Morgan v. Palmer, 2 Barn. & Cres. 729 : Seely v. Birdsall, 15 John. 268 ; 1 Mass. Rep. 530 .)

Again, by the common law a sheriff is liable in trespass for the acts of his deputy committed in the attempt to execute process, although without his direct! ,n or recognition. (Grinnell v. Phillips, 1 Mass. R. 530 ; Armenthe v. Kempe, Douglass, 42; 3 Greenl. 420; Jentry v. Hunt, 2 McCord. Rep. 410 .) But according to the doctrine of Ex parte Reed, there being in the given case, “ no authority, there was no office, nothing official.” And yet the principal is, notwithstanding, held responsible, in consequence of the relation existing between him and his subordinate, a relation that is purely official and nothing [182] else. ( 7 Mass. Rep. 128 .) If a trespass committed by a deputy, in enforcing legal process, is deemed so far official as to charge

But we are not without direct authority on this question. In Skinner v. Phillips, ( 4 Mass. Rep. 69 ,) the suit was scire facias against a sheriff and his sureties, reciting the official bond oí the former, the condition of which was, “ that he should faithfully execute the duties of his office.” The declaration set forth a judgment against the sheriff in favor of the plaintiff, for damages by and through the misfeasance and malfeasance of the sheriff. On demurrer to the declaration it was determined by the court, C. J. Parsons delivering the opinion, “ that any party injured by the malfeasance of the sheriff or his deputy, was entitled to relief upon the bond.”

In Archer v. Noble, (3 Greenl. 418,) a constable had given a bond with sureties “ for the faithful performance of his duties and trust, as to all processes by him served or executed.” It was held, that if he seized the goods of A. under an execution against B. it was not merely a private trespass but a breach of his bond. In Harris v. Hanson, (11 Maine, 241,) it was decided, that the taking of the property of one, by a coroner, upon a suit against another, was a malfeasance in office, constituting a breach of his bond given “ for the faithful performance of the duties of his office.” In Cormack v. Commonwealth, (5 Binney, 184,) the sureties of the sheriff were held liable on a similar bond, where the goods of A. were taken upon a fi. fa. against B. In Forsyth v. Ellis, (4 J. J. Marshall, 299,) the precise question was determined the same way in Kentucky ; and in Commonwealth v. Stockton, (5 Monroe, 192.) In this state the decision in Ex parte Chester can not upon principle be reconciled with the previous one in Ex parte Reed. The question must have been deemed an open one, or permission would not have been granted to the plaintiff to prosecute this suit, by the same court who refused it in Ex parte Reed. The point was presented [183] in each case upon motion, and the decisions are directly opposed to each other. We are not, therefore, concluded by the action of our own courts. The adjudications of the highest

There is another consideration which is deserving of attention. The action of trespass against sheriffs for the seizure of property in the execution of legal process, is sui generis. It is regarded by the law in many instances, as a means of determining the title to property, rather than in the light of an ordinary trespass. Good faith upon the part of the officer is presumed, and he may consequently require and receive indemnity before proceeding to the final execution of the writ. (8 John R. 185 ; 8 Cowen, 67.) The form of the indemnity in this case was prescribed by statute, and the sheriff made the sole judge of its sufficiency. (2 R. S. 4 §§ 10,11.) His sureties on payment of the judgment against their principal, would be entitled to subrogation, and to the benefit of his security ; while no provision is made for its assignment to those who have been deprived of their property. The omission, I grant, will not enlarge the undertaking of the sureties. But it shows, what indeed is manifest from the whole structure of the statute, that its framers supposed that in all his proceedings under it, the sheriff was in an important sense acting officially ; that the idea did not occur to them, that in making an erroneous seizure under the attachment, the sheriff divested himself of all the insignia of his office, to be resumed when he took a bond and detained the property. This is the view of the defendants. We are inclined to regard the original taking as a misapplication by the sheriff of the authority of his office, for which his sureties are responsible.

The judgment of the supreme court must be reversed.

Bronson, Ch. J. and Jewett, Harris and Taylor, Justices, concurred.

In the examination of this [184] case it becomes necessary, in the first place, to ascertain the

It is clear to me that the sureties under this bond, guarantee the public against official delinquency on the part of the sheriff) and that the guaranty extends to that alone. That in no case except for an escape can they be made liable, unless it be proved that the sheriff has violated some duty resting upon him as a public officer; and in all cases except when the action has been brought for an escape, it is a perfect defence on their part if it appear that the sheriff exercised due diligence: that he was guilty of no want of. fidelity to his trust. The case of an escape is an exception. It is made so by the statute, and therefore no degree of diligence will excuse them. But even in that case, the form, of the action assumes that the sheriff has been negligent, and proof of the escape is made 'conclusive evidence off the fact. The bail for the limits which the sheriff is required to take is his protection, and he must look to that for his indemnity ; but except this there is no case where any thing more is required of him than due care and fidelity. This is evident from the terms of the condition of the bond, and the provisions of the statute, which give a right of action for its violation. The sheriff “ must well and faithfully perform and execute the office,” and for any “ default or misconduct in his office,” the [185] condition is violated. Now the language of the statute

It is an elementary principle, that the undertaking on the part of sureties, is not to be extended by construction, one iota beyond its terms, but on the contrary, it is to be strictly construed in their favor. ( 18 John. 389 ; 10 id. 180.) The question therefore, in this case, is not whether the sheriff has not done some act colore officii for which he may be liable to an action, but the question for our consideration is whether the declaration shows any misconduct in his office; any want of fidelity to the trust reposed in him as sheriff; or any failure in his official duty as such, by which the plaintiff has suffered damage.

How what duty has he violated ? or what negligence or misconduct has he been guilty of? An attachment bad been delivered to him, under which he proceeded to levy on some property, supposed by him to belong to the defendant in the execution. The relator interposed a claim of title ; the sheriff summoned a jury to try the validity of such claim, and they found the property in the relator. A sufficient indemnity was then tendered to him by the plaintiff in the attachment, and the sheriff thereupon detained the property. In all this the sheriff followed the express directions of the statute. Had he deviated from these directions, he would clearly have departed from his duty, and made himself and sureties liable to an action. (2 R. S. 4, §§ 10, 11; 8 John. 185 ; 1 Ball, 595; 8 Cowen, 67.) How then, it may well be asked, can a breach of duty be predicated upon an act by the sheriff, which the statute requires him to perform, and which, if he should neglect to perform, would itself constitute a breach of duty,? Are the sheriff and his sureties placed by the law in any such embarrassing dilemma ? Does the law tolerate any such legal absurdity, as that an act is at the same time both a performance and a violation of official duty ; a performance and a breach of the conditions of a bond ? And yet, if this declaration can be sustained upon this [186] point, it must be upon this hypothesis, however absurd it may be.

The question may be asked, how then was the sheriff made

Suppose a case where the property was found in possession of the debtor, and no notice given to the sheriff that any one other than the debtor had any claim to it. Bnder such circumstances, it would clearly be the duty, of the sheriff to seize it, and yet, that would afford no justification to him in an action of trespass, if it should turn out that the property in fact belonged to a third person. His conduct might be the most discreet imaginable; he might after the most careful inquiry, and upon [181] the most ample evidence, be entirely satisfied that the property belonged to the defendant in the execution; and yet, in an action of trespass upon the question of title, it would be

But it has been attempted in this case to bring the act within that class to which I hax-e conceded the liability of sureties to extend. It is insisted that the duty rested upon the sheriff in this case to seize the property of the defendant in the execution or to return the writ. But the difficulty in this argument is that the sheriff was not made liable for not seizing the goods of Fay, but for seizing the goods of the relator. The relator has no right of action against the sheriff or any body else for this neglect. The plaintiff in the attachment is the only man who has any interest in that matter. The most subtle ingenuity will scarcely be able to explain how a trespass upon the property of the relator can constitute a neglect to seize the goods of the defendant in the attachment, so as to give the' former a right of action for such neglect. But it is insisted that public policy requires that the sureties should be made liable; that the rights of third persons would be otherwise unsafe, because they could not successfully resist the sheriff, he having the power of the county at his command. Arguments from mere inconvenience are never very satisfactory or controlling, and ought never to be allowed for the purpose of extending the liability of sureties. But I can not appreciate the supposed difficulty. It is quite clear that if the sheriff should attempt to seize the property of the wrong man, the latter would have a right to resist force with [189] force, and having the right with him there can be no reason why he should not be successful. ( 8 Pick. 133 .) The claimant would thereby have the advantage, as he could protect those who might assist him, whereas those who might assist the sherifl would be trespassers.

The liability of the sheriff for the acts of 'the deputy is therefore clearly an exception to the general rule. This exception may have originated from the fact that anciently they were not considered public officers, but the servants or bailiffs of the sheriff, and it was customary for the sheriff to issue a precept to' them in each particular case ; or it may have originated in some reasons of public policy growing out of the general character of the deputies, as suggested by Sergeant Davy in Sanderson v. Sheriffs of London and Middlesex to wit: that they were the most abandoned and wicked set of men. At all events, the exception is not based upon any legal principle which necessarily requires its extension to other cases, and especially when the effect of such extension would be to increase the liability of sureties. Their liability rests in contract, and the obligation thereby created is not to be extended beyond its legitimate scope and meaning. We are not at liberty to speculate upon reasons of policy when the rights of parties are fixed by contract.

But as a question of policy, the inquiry may well be made,why should the sureties of the sheriff be made liable in [190] cases of this kind ? Through efforts to defraud creditors and sometimes when no such intention exists, difficult and perplexing questions of title or priority of lien often spring up. The '

I have thus far examined the question involved in this case upon principle. Upon authority the positions which I have assumed are supported by a decided preponderance, especially in this state. Indeed, in this state I have not been able to find even a dictum to the contrary. The cases of Ex parte Reed, ( 4 Hill, 572 ,) and Ex parte Martin referred to in that case, are directly in point. The precise question was passed upon in both cases; and although they were decided upon motion at special term, yet the former at least was decided by Judge Cowen, after consultation with the other judges of the court. The case of the People v. Spraker and others, ( 18 John. 390 ,) is also in [191] point that the undertaking of the sureties is not to be extended beyond its terms. That decision was under the statute of 1813, which required judgment to be recovered against the sheriff for default or misconduct in his office before the sureties

In Morris v. Van Voast, ( 19 Wend. 283 ,) the court give a construction to the language of a statute similar in its terms to that of the sheriff’s bond. The action was trespass against a sheriff. The defendant pleaded that he took the property by virtue of a writ of replevin, setting up the short statute of limitations. The court, by Nelson, Ch. J. held that the statute only extended to acts done virtute officii; that if the sheriff was a trespasser the act must be deemed done colore officii, and that the statute was therefore no bar. Seely v. Birdsall, ( 15 John. 267 ,) was an action for a false return, which was held to be local because it was an act done virtute officii. Spencer, Ch. J. said, “ the true distinction was between an act done colore officii and virtute officii. In the former case, the sheriff is not protected by the statute when the act is of such a nature that his office gives him no authority to do the act. But when in doing the act within the limits of his authority, he exercises that authority improperly, or abuses the confidence which the law reposes in him, to such cases the statute extends.” It will be perceived that this was for precisely the same act on the part of the sheriff as that in Ex parte Chester, which is cited as opposed to the case of Ex parte Reed. As to that case it might, perhaps, be a sufficient answer to it, that it was decided by the same court who decided the case of Ex parte Reed, and that they did [192] not seem to be aware that they were overruling a well considered decision so recently made by themselves. But the two cases are

In the case of Commonwealth v. Kennard, ( 8 Pick. 133 ,) itwas held that the owner of property might resist the officer who should attempt to seize it by virtue of an execution against another. Ch. J. Parker said, “We cannot distinguish between an officer who assumes to act' under a void precept and a stranger who should do the same act without precept. An officer without precept is no officer in the particular case in which he so undertakes to act.” So in Alcock v. Andrews, (2 Esp. 540,) which was an action against a constable for an assault and battery, who set up the six months’ statute of limitations under the [193] statute 24 Geo. 2, ch. 44. Lord Kenyon overruled the ob-' jection upon the distinction that the defendant acted colore officii,' and not virtute offiicii—“ that it had 'often been held that a con

Now these are plain, obvious distinctions, and clearly applicable to this case. I admit that they have not in all cases been adhered to; but when they have been disregarded, it has generally been for the protection of public officers, and not for the purpose of extending their own liability or that of their sureties. In two or three states, sureties have indeed been held liable for the acts of their principals done colore officii; but these cases cannot be supported upon legal principles. In Carmack v. Commonwealth, ( 5 Binn. 184 ,) the sureties of the sheriff were held liable for taking the goods of the plaintiff upon an execution against another person. The principal ground of the decision seems to have been that it cost persons so much to obtain the office that it generally made them insolvent, so that unless their sureties be made liable for their trespasses the public would not be sufficiently protected. In the same state it has recently been held, in an action against a sheriff and his sureties, where the sheriff had returned a levy upon property, that it constitutes no defence that the property did not belong to the defendant in the execution, but belonged to a third party. Miller v. Commonwealth, (5 Barr, 294.) This latter decision is also placed upon reasons of policy growing out of the danger of collusion between officers and the defendants to defraud honest creditors. We are not acquainted with the materials of which sheriffs are made in that state; but if both these decisions are good law, they must be bold men who would be willing to become their sureties. A sheriff who should unwittingly levy upon property which did not belong to the defen- [194] dant, would have no method, upon discovering his mistake, of either saving himself or sureties. If he should sell the pro

In Maine, decisions to the same effect have been made, (3 Greenl. 418 ; 11 Maine, 241;) but they were based upon what was supposed to be decided in Massachusetts, in Skinner v. Phillips, ( 4 Mass. 73 ,) and also upon the supposed analogy to the liability of the sheriff for the acts of his deputy. I do not find any such principle decided in Skinner v. Phillips. The statute of Massachusetts requires judgment to be recovered against the sheriff; and in that case judgment had been so recovered against him, for misfeasance and malfeasance in his office, without specifying particulars. The court held that the sureties were liable for the misfeasance and malfeasance of the sheriff in his office. Mow this is a truism that no one will doubt, but it entirely fails to show what act will constitute such misfeasance or malfeasance in office. Besides, the bonds of sheriffs, both in Maine and Massachusetts, provide that the sheriff shall cmswer for the misfeasance and malfeasance of deputies. As the undertaking is general for the acts of deputies, without confining it to their official acts, the bond might well admit of a more enlarged construction in regard to the. liability of the sureties than a bond like the one in suit. For these reasons I do not deem those decisions as entitled to a great deal of weight, when they come in conflict with the decisions of our courts. (See also 2 Shep. 112 ; 7 B. Monroe, 250 ; 2 Alab. 728; 11 S. & M. 354 ; 13 Ala. 526 ; 10 John, 271 ; 2 Wend. 611 ; 3 Burr, 1767.)

The next question is whether the officer was guilty of any official delinquency in not paying up the judgment. If in' [195] taking the property he was not guilty of official delin

Buggles, J. and Hurlbut, J. concurred.

Judgment reversed.