Rowe v. Richardson , 5 Barb. 385 ( 1849 )

By the Court, Pratt, P. J.

There are two questions presented by the demurrer in this cause. First. Whether there is a substantial breach of the condition of the bond assigned in the plaintiff’s declaration; and Secondly, Whether, if there be a substantial breach assigned, such assignment is defective in form.

The declaration is very unskilfully drawn; and it is somewhat difficult to determine which of the numerous allegations in the declaration the pleader relied on, as constituting a breach of the condition of the bond. In order to give the plaintiff a cause of action, there must not only be a technical breach of duty on the part of the deputy, but it must be such a breach of duty, as to occasion pecuniary damage to the plaintiff The object of the bond is clearly to indemnify the sheriff against damage or liability in consequence of his deputy’s neglect of duty. And however gross may be his derelictions, his bail, we apprehend, are not liable, unless the sheriff has been damaged or been made legally liable in consequence of such dereliction. (Hughes v. Smith, 5 John. 168.)

Again; we conceive it to be a clear proposition that the bail of a deputy sheriff are only responsible for his official acts as a general deputy. They are not responsible for a want of-courtesy on the part of the deputy, towards his principal, nor for an act which may be annoying or even troublesome to the sheriff, so long as his conduct is strictly in accordance with his duty as a public officer. (Tuttle v. Cook, 15 Wend. 274. 6 Barn. & Cress. 739. Bacon’s Abr. tit. Sheriff, H. sub. 2.)

In this case, a fi. fa. issued to the sheriff, came into the hands of Richardson, his deputy, to be executed. He levied upon the property of Van Epps, the defendant in the execution, and advertised and sold the same. Thus far, we are unable to discover any breach of duty on his part, as a public officer. He followed the directions contained in the process, and for thus doing it is difficult to perceive wherein he has done wrong as a general deputy. It is alleged in the declaration that an older execution was in the hands of the sheriff, which had been previously levied upon the same property and upon which the property ought to have been sold. In answer to this allegation, if the property ought to have been sold upon the prior execution, we are unable to perceive any good reason why the sheriff did not take it into his own exclusive possession and sell it. The property was in his legal custody, and under his control, by virtue of the prior levy; nay, for that matter, it was in his custody, by virtue of Richardson’s levy. He was therefore under no legal compulsion to deliver it over to Richardson : or if the latter got possession of it without his knowledge, the sheriff might retake it. He surely had the power, legally and physically, to control it; and he ought not to be allowed to stand still and see his authority set at defiance by his deputy, and then bring an action against his bail for damages. If the deputy insisted on controlling the property, the sheriff could have removed him, and settled the controversy at once. Thus far, then, we are of opinion that the deputy was guilty of no breach of official duty as a public officer, and that his conduct was not such as to impose any liability upon his bail.

But there is an additional allegation, that the deputy did not make any money on the sale, or if he did that he has neglected and refused io account with the plaintiff for the same. Whether that constitutes a breach “of the condition of the bond, for which an action can be sustained, depends upon this question of law. Was the sheriff bound, or had he the right to apply the proceeds of the sale upon the prior execution ? For the plaintiff must show not only the misconduct of the deputy, but that he has been made legally liable for such misconduct, or has been mulcted in damages therefor. It does not appear that the sheriff has suffered any damages for any negligence in regard to the second execution. It therefore would seem to follow that unless he was authorized to apply the proceeds of the sale on the prior execution, the damage which the plaintiff has sustained, was not in consequence of the failure of the deputy to account for the proceeds of the sale, but rather in consequence of the sale itself which the sheriff had the power to prevent; and he ought to have prevented it.

It becomes material to inquire therefore whether the plaintiff could legally have made that application. This question is not entirely free from difficulty. In the case of Rybalt v. Peckham, cited in Hutchinson v. Johnston, (1 T. R. 729,) it seems to have been held that when two executions against the same defendant are delivered to the sheriff at different times and he sells upon the last execution, he is bound to apply the proceeds upon that execution, although the sheriff will be liable to the plaintiff in. the first execution for the amount The ■case is not reported at length, but a note of the decision to that effect is given. This decision was approved by Nelson, Ch. J. in the case of Fenton v. Folger, (21 Wend. 676,) but the point was not necessarily raised. (See also Sandford v. Roosa, 12 John. 162; 1 Lord Raymond, 251.)

But in the case of Russell v. Gibbs, (5 Cowen, 390,) the very opposite was held. In that case an execution came into the hands of one deputy who levied upon a mare of the defendant. After the return day of that execution, another execution came into the hands of another deputy of the same sheriff) which was levied upon the property of the defendant therein, except the mare in question, which had been removed out of the county into the state of Vermont, before the receipt of the execution. The property was advertised for sale and was sold under the last execution, together with the mare in question, which had been returned the day before the sale. Russell, who owned the judgment upon which the former execution issued, bid off the mare. The sheriff insisting that the proceeds of the sale should apply on the execution upon which the property was sold, brought his action against Russell for the price. The court held that the property being in the sheriff’s hands by the levy on the first execution, the sale under the last execution was regular; but that the sheriff was bound to apply the proceeds upon the first execution. If this decision is good law it is decisive of the question. The sale under the last execution, in the case at bar, was undoubtedly good to pass the title. (21 Wend. 676. Gra. Pr. 384. 4 Cowen, 461.)

The sheriff therefore could not seize and sell the property again. The levy upon the property by virtue of the prior execution was pro tanto a satisfaction of it. If the sheriff could not apply the proceeds of the sale upon that execution, the same property might have the effect, as to the defendant, to satisfy both executions, although it was only sufficient in value to satisfy one. We can see no good reason why a rule should be adopted which might work such manifest injustice. Each deputy represents the sheriff, and is in contemplation of law; as t.o others, the sheriff himself. The legal rights of the parties to the execution are the same as if the sheriff had held both executions, and had in person made the levy and sale. In such case it cannot be doubted that this court, upon application, would have compelled him to pay over the proceeds to the plaintiff in the first execution. If we are right in this view then it follows that the liability of the sheriff was a legal consequence of the default of the deputy Richardson, in not paying over the money made on such sale, and not of the act of selling. The sheriff could not maintain an action against Hubbard, but must seek his remedy against Richardson, or nowhere.

Thus much upon the merits. It still remains to consider whether the facts set out in the assignment of breaches are sufficient to give the plaintiff a cause of action, and if either of the assignments is good, the demurrer being to the whole declaration, the plaintiff is entitled to judgment.

First. The second execution is alleged to have been delivered to Richardson on the fifteenth day of December, and it is alleged to have been returnable on the second Monday of the same month. The execution, therefore, would seem not to have been delivered to the defendant Richardson until after the return day, and Richardson, in meddling with the property, was a mere trespasser. He was not acting under his process, and his bail ought not therefore to be made liable.

Secondly. The first assignment is uncertain, containing many allegations repugnant to each other and exhibiting any thing but skill on the part of the pleader.

Thirdly. The second assignment alleges as misconduct on the part of Richardson, only the sale of the property. We have shown above that there was no misconduct in the sale alone. The same difficulty in relation to issuing the execution applies to this assignment as well as to the other.

We think both assignments are therefore bad in form. There must be judgment for the defendant on the demurrer, with leave to amend.