Gibbs v. Bull , 20 Johns. 212 ( 1822 )

Spencer, Ch. J.

delivered the opinion of the Court.

1. The defendant is not entitled to a writ of inquiry; for he has, in fact, sustained no damages, except the costs he has been put to. The second section of the act (sess. 24. ch. 47.) does not apply to a case where the defendant is entitled merely to costs. This was so decided in the case of Gardner v. The Trustees of Newburgh.

But the defendant is entitled to double costs on the issues of fact. It is conceded that he is not entitled to double costs on the demurrers. It is said that the defendant is prosecuted for an act of nonfeasance merely, for not taking sufficient security on the replevin. He is sued for an act done virtute officii, to wit, for a misfeasance in office, for taking insufficient sureties. Misfeasance consists in doing what one ought to do, improperly; (1 Tidd’s Pr. 5.) and in Seely v. Birdsall, (15 Johns. Rep. 269.) where the question was, whether the act done by the sheriff was done virtute officii, it was held, that when, in doing an act within the limits of his authority, he exercises that authority improperly, or abuses the confidence reposed in him by law, the statute extended to such cases. The Court were then considering, whether the plaintiff was bound to prove that the cause of action arose within the county wherein it was laid, and, therefore, it was a direct construction of the act. In actions for negligent escapes, it might as well be said they were for nonfeasances. They are misfeasances, and the Sheriff would be entitled to double costs.

The motion for a writ of inquiry is denied; and the defendant must have single costs on the demurrers, and double costs on the issues.