[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 175 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 178 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 *Page 179 received an indemnity and detained the goods, in opposition to the verdict. He received the attachment, therefore, not colore officii, but in virtue of his office. His sureties undertook "that he should faithfully execute" the process. If he had "in all things" performed his duty, he would have seized the goods of Fay or returned the writ, instead of which he levied upon the goods of Batchellor, as the property of the defendant in the attachment. Upon principle, and upon grounds of public policy, it seems to me, that the responsibility of his sureties should be different from those they would incur, if the sheriff had entered upon the premises of the relator, and removed his goods without any process whatever. In the last case supposed, the sheriff would act in his own right, and might be resisted as any other wrongdoer. In the one before us, he was put in motion by legal authority, invoked in behalf of others, and could command the power of the county to aid him in its execution. Respect for the process of our courts, and for the official character of the sheriff, if it did not forbid forcible opposition, (which must have been unavailing,) is incompatible with the notion of making resistance indispensible as a means of protection. This must be the alternative, if those who are thus aggrieved are driven to rely exclusively upon the responsibility of the officer, who, as in this case, may be wholly insolvent.
It was, however, assumed by Judge Cowen, in Ex parte Reed, (4Hill, 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 *Page 180 was required to perform as sheriff." The distinction is between a case in which a duty is imposed at law upon an officer as such, which he is bound by his peril faithfully to discharge, and one in which there is no such obligation. Where the duty exists, and it is neglected, or performed in an improper manner, the sureties upon principle should be liable, otherwise not.
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 scope 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 Ex parteReed, "that the commission of a tort was not the faithful performance of his office as sheriff, or any performance at all." *Page 181 The objection was as applicable in one case as the other. It is no answer to say that in Ex parte Chester, a return of the execution was authorized and required by law, and the misconduct consisted in doing the required act in an improper manner. The fi. fa. in Ex parte Reed, and the attachment in this case, authorized and required the sheriff to levy upon property; in both cases the seizure of the property of third persons was doing the required service in an improper manner. In each of the above cases, the specific acts, which gave the right of action against the officer, were unauthorized. Otherwise there could have been no misfeasance. In each, however, the sheriff was directed by legal process to perform an official act of the same character, of that which was the subject of complaint. In each he assumed to discharge a duty pertaining to his office, by means which the law did not authorize or permit.
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. 364; 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 direction or recognition. (Grinnell v. Phillips, 1 Mass. R. 530; Armenthe v.Kempe, Douglass, 42; 3 Greenl. 420; Jentry v. Hunt, 2McCord. Rep. 410.) But according to the doctrine of Ex parteReed, 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 therelation existing between him and his subordinate, a relation that is purely official and nothing *Page 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 his principal, no satisfactory reason can be given why the same proceeding, by the sheriff in person, should not be held of the same character in order to charge his sureties.
But we are not without direct authority on this question. InSkinner v. Phillips, (4 Mass. Rep. 69,) the suit was scire facias against a sheriff and his sureties, reciting the official bond of 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 parteReed. 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 Exparte Reed. The point was presented in each case upon motion, and the decisions *Page 183 are directly opposed to each other. We are not, therefore, concluded by the action of our own courts. The adjudications of the highest courts, in at least three of the neighboring states, sustain the action. The defendants have referred to no case beyond this state, to the contrary. The weight of authority, and as it seems to me, a fair construction of the obligation of the defendants, are both in favor of the plaintiff.
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 *Page 184