Norton v. Nye

Cutting, J.

—Trespass against the defendant as sheriff of Somerset county, for the misfeasance of one JosiakD. Bartlett, his deputy. For the purposes of the trial at nisi prius, and to present certain questions of law, it was admitted that the money sued for ($500) was the property of the plaintiff before it came into the hands of the deputy, of whom it was demanded prior to the commencement of this suit.

Upon the evidence produced by the plaintiff, we are of the opinion that he would be entitled to judgment, unless the testimony offered in defence was improperly excluded, or that for the alleged default of his deputy the defendant is not liable; questions raised in the specifications and a brief statement of his defence.

The evidence offered,, and ruled inadmissible, was to sustain the following brief statement, .viz.: — "And for his brief statement in this behalf, the defendant says, that, on the 11th of August, 1865, he was and ever since has been a sheriff within and for the said county of Somerset; and that one Josiah D. Bartlett then was and ever since has been a deputy sheriff within and for said county, under him duly appointed and qualified.

"That, on said 11th day of August, 1865, the plaintiff made a complaint to one William Bartlett, a trial justice, charging that one thousand dollars in bank bills, the property of the plaintiff, had been feloniously stolen and carried away from his possession; and that he had probable cause •to suspect, and did suspect, that the same had been stolen by Jesse Fletcher of Embden ; and that the same, or a part thereof, was concealed in said Fletcher’s dwellinghouse, and requesting a search warrant with an order to arrest said Fletcher.

'"That, on the same day, a warrant was issued, in due form, by said William Bartlett, as such trial justice, addressed to the sheriff of said county, or either of his deputies, or any coroner of said county, and delivered to said Josiah D. Bartlett, defendant’s deputy, as aforesaid, and a coroner, within and for said county of Somerset, for service.

"That, ou the 6th day of September, 1865, said Josiah D. Bartlett duly served and executed said warrant; and, in accordance with his doings therein, made his return thereon, in substance, that he had searched said dwellinghouse and found a package of money containing five hundred dollars, and that he had the same and said Fletcher before Sullivan Williamson, Esq., a trial justice, within and for said county of Somerset, for examination. That, on said 6th day of September, said Williamson, at New Portland, in said county, after an examination and full hearing touching the charges and allegations in said complaint, at which hearing the said Norton appeared, with counsel, and took part therein throughout the hearing, and was examined as a witness, decided and adjudged that said Fletcher was not guilty as it had been alleged in said complaint said Norton suspected, and he acquitted and discharged him.”

Had the brief statement, which was offered to be proved, terminated here, evidence as to its truth may have been properly excluded, since it had been admitted that the money sued for, before it came into the hands of the deputy, was the property of the plaintiff.

But the statement proceeds further and says,—"If the money belonged to the plaintiff, he placed it in the house of said Fletcher for the wicked and unlawful purpose of causing the arrest and conviction of said Fletcher, and that the material allegations and charges contained in said complaint, signed and sworn to by the plaintiff, are false, and were by the plaintiff known to be false when he signed and swore to the same.”

If such an allegation be true, the plaintiff, it is argued with much force, instead of being in a court of justice, should be incarcerated with convicted perjurers, far from any aid from the court, and, perhaps, beyond the Executive clemency; and, as the case is presented, that allegation must be presumed to be true.

But the plaintiff is in court, and not in prison. For some cause the injured party has not seen fit to institute a criminal prosecution; and the plaintiff, under the admission that the money was his before the time it came into the possession of the defendant’s deputy, brings this action for its recovery, and calls on him to account for its detention. If it was once the property of the plaintiff, it remains his until some person shows a superior title. If the officer, after all criminal proceedings had been terminated-, instead of retaining the money-, had returned it into the possession of the person from whom he had taken it, as he might lawfully have done, perhaps this suit might have been successfully defended; but upon this point we express no opinion, and, in a suit against a person, in whose possession the money was found, perhaps the plaintiff, under the circumstances, could not have prevailed, as no Court would have been willing to lend its aid to a party guilty of such infamy; and, in such case, the able argument of the defendant’s counsel would have been conclusive. But Jesse Fletcher, the party criminally charged, sets up no claim to the money or on the officer who took it from his constructive possession.

Then it is contended that this action for the money cannot be ■ maintained, because it becomes derelict, and such defence is set forth in the brief statement. Such defence might have prevailed in an action against Fletcher, but we know of no decision in the whole history of jurisprudence where property was held to be derelict in the hands of an officer taken on judicial process.

Again, the specification discloses, and it is urged, that trespass does not lie against the sheriff; first, because the property was rightfully taken, and secondly, because, if rightfully taken, and not delivered on demand, it was nonfeasance, and not misfeasance as alleged, and, for the latter, trespass ah initio cannot be maintained. But the neglect to pay over money in the hands of an officer, to. one entitled to it, on demand, is not only an act of nonfeasance but also of misfeasance, and, for such misdemeanor on the part of the deputy, the sheriff is liable, whether it occurs in the service of civil or criminal process.

On the whole, our conclusion is, that the evidence offered was rightfully excluded, and, according to the agreement of the parties,

Judgment must be rendered for the plaintiff.

Walton, Dickerson, Danforth and Tapley, JJ., concurred.