Warner v. Lownds — 1 N.Y. Super. Ct. 224

Majority

p. 224

Henry W. Warner versus Oliver M. Lownds, Sheriff, &c.

Oct. Term, 1828.

Headnote

In an action on the case against a Sheriff for non-feasance, wherein he is acquitted, single costs only are to be allowed to the officer, on taxing a bill in his favour.

This was an action on the case against the sheriff for a neglect of his official duty. The declaration contained two counts. In the first, the plaintiff claimed damages of the sheriff for not levying on the property of a defendant under certain executions issued in favour of the plaintiff; in the second, for not returning said executions. Plea, not guilty.

A verdict was taken for the plaintiff, subject to the opinion of the court, on a case to be made; on which case, judgment was finally pronounced in favour of the defendant, who now claimed double costs. The question was submitted to the court for directions to the taxing officer.

Mr. J. Anthon, for the defendant, observed,

I. That as this was an action on the case against the sheriff sounding in tort, for a neglect of his official duty, it was within the act; and the defendant; therefore, was entitled to double costs. [1 R. L. 155. Crummer v. Huff. 1 Wend. Rep. 24 .]

II. Any neglect on the part of the sheriff, in the discharge of his official duties, is an act of mal-feasance, for which an action on the case lies; and the sheriff, in such actions, if acquitted, is always entitled to double costs. The only protection which the sheriff has against harassing actions on the case, is that afforded him by the statute, allowing double costs, and the act being remedial, must receive a liberal interpretation, to afford the security which it contemplated.

The cases of Platt v. Osborn, ( 2 Cow. 527 .) and Blanchard v. Bramble, (3 Mau. and Sel. 131.) were actions of assumpsit, and

p. 225

therefore expressly excluded from the act. But here, in an action on the case, sounding in tort, the defendant is entitled to double costs.

Mr. Warner, contra, in propria persona.

The statute giving double costs, in certain cases, is penal, and must therefore be construed strictly. [Stone v. Woods, 5 John R. 182.] And it has been often decided, that the statute does not apply to cases of mere non-feasance, or neglect of duty. [Atkins v. Barnwell, 3 East, 92. Blanchard v. Bramble, 3 M. and S. 131. Platt v. Osborne, 2 Cow. 527 .] The cases last cited were actions on the case, (in assumpsit,) and were founded solely on the distinction between non-feasance and mal-feasance, in the construction of the statute.

directed single costs only to be taxed in favour of the sheriff, considering this as a case of non-feasance merely on the part of the officer, and for which the action was brought.

[Mr. E. Anthon, Att'y for the deft. Mr. H. Warner, in propria persona.]

Cases cited

Platt v. Osborn 2 Cow. 527 N.Y. Sup. Ct. p. 224, p. 225