This was an action charging, that on the 3d day of November, 1848, one Oscar Tyler, by virtue of and under the warrants, authority and direction of the defendant, and without the authority of the plaintiff, seized and took into his possession, at Watervliet in the county of Albany, a quantity of bank notes, of the value of two thousand and seven hundred dollars, then and there being the property of the plaintiff and *Page 332 in his possession and sold the same at public auction, for the sum of $2698,93, and retained the money received therefor, whereby, c.
The defendant in his answer justified the taking by Tyler, who was sheriff of the county of Albany, by virtue of seven warrants issued by the defendant as treasurer of the same county, under the 4th section of the act, entitled "An act to "equalize taxation," passed May 13th, 1846, (Sess. Laws of 1846, ch. 327,) setting out all the proceedings which led to the issuing of the warrants, and the substance of the warrants, all of which bore date April 22, 1847, and were directed to the sheriff of Albany county, briefly reciting the proceedings, and commanding him to levy the respective amounts mentioned therein, of the goods and chattels, lands and tenements of the plaintiff, and to return the warrants to the defendant and pay him the moneys he should have collected by virtue thereof, on or before the 18thday of July then next.
The defendant also alleged that the proceedings on the warrants were stayed by injunction obtained by the plaintiff, from May 26th, 1847, to Sept. 14th, 1848, and he denied that he had given any directions to the sheriff except such as were contained in the warrants, or that he had any further agency therein.
The plaintiff in his reply alleged that the act of May 13th, 1846, under which the warrants were issued, was unconstitutional, and that the warrants were void; and he denied that the bank notes were taken by the sheriff under or by virtue of the warrants. The official character of the defendant was not denied.
On the trial before PARKER, J. it appeared that the warrants were all received by the sheriff on the 17th of May, 1847. That an injunction, dated May 26th, 1847, staying all proceedings on the warrants, was served upon him on the 1st of June, 1847, before any levy had been made, and an order dissolving the injunction was served upon him, September 14th, 1848. That the sheriff, on the 3d of November, 1848, by virtue of those warrants, levied upon a package of the plaintiff's bank notes, amounting to $2700, and sold the same at public auction for *Page 333 $2698,93, received the money therefor, and subsequently paid it to the defendant, and returned the warrants to him. That he made no levy under the warrants prior to November 3d 1848, and had no other directions from the defendant to execute them than those contained therein. Upon these facts, the evidence of them being received without objection, the circuit judge nonsuited the plaintiff, on the ground that the sheriff had not levied, before the day specified in the warrants for the return thereof, and that for his acts after the return day, the defendant was not liable, unless those acts were done by his special directions, other than those contained in the warrants. Other questions were presented and decided at the trial, but the consideration of them becomes unnecessary, in consequence of the conclusion to which I have arrived upon that on which the nonsuit was granted.
Assuming, as was contended at the trial, that none of the warrants afforded any protection to the defendant, provided they had all been levied on or before the return day, can the defendant be made liable when nothing was done toward their execution until the return day had passed, and what was afterwards done was without directions from him? If he cannot, then the nonsuit was right and the judgment must be affirmed.
The warrants were in the nature of writs of fieri facias. The 5th section of the act above referred to, directs the manner in which the sheriff shall proceed upon them, which is in all respects, with like effect and in the same manner, as prescribed by law in respect to executions against property issued by a county clerk upon judgments rendered by a justice of the peace. When the return day had passed without a levy, the warrants became functus officio, and were no longer any authority for the sheriff to perform any act under them. This principle, as applicable to executions against property, is too well settled to admit of doubt. (Vail v. Lewis, 4 John. 450; Devoe v.Elliott, 2 Cowen, 243.) The warrants, provided they were regular, and the defendant had jurisdiction to issue them, conferred upon the sheriff a power to make a levy, c. which was limited in regard *Page 334 to time to the return day, after which the power ceased, and they would be no longer an authority to him, excepting to complete the execution of the power which had been previously commenced. Now, on the supposition that they were void for any reason at the time they were issued, can the defendant be made liable for acts done by the sheriff after the assumed power ceased? I think he cannot. He did not, by the warrants, direct or authorize the sheriff to levy, after the 18th July, 1847; and unless he can be charged with some direction or agency other than the act of issuing them, or what is contained in them, the act of the sheriff in levying afterwards cannot be regarded as his act, either constructively or otherwise.
The circuit judge decided, that five of the warrants were regular and valid, and that the other two were void, and issued without jurisdiction, owing to an informality in the returns of the town collectors on which those warrants were based. Without considering whether this decision was correct, I think it must now be assumed to have been so, and then there was authority to have made a levy on or before the return day. There is nothing in the case to show that the defendant knew it was not made by that time. He may well have supposed it was so and that the sale was postponed by the operation of the injunction. But however this may be, it seems to me that the defendant can be in no worse situation, supposing all the warrants were void ab initio, than if they had all been valid and regular, and the sheriff had made the levy after the return day was passed. In the one case they never had any virtue as an authority to the sheriff, in the other the authority was spent, or had ceased, through lapse of time, to exist, which it seems to me is the same thing. In both cases there was an entire absence of authority at the time when the act complained of was done.
It is contended by the counsel for the plaintiff, that the defendant, having set the sheriff in motion by his illegal warrants to do an illegal act, cannot screen himself from the consequences, by alleging that the latter did not do the act in the time or manner directed; and it is sought to bring the case within *Page 335 the principle of Wall v. Osborn, (12 Wend. 39,)Vandenburgh v. Truax, (4 Denio, 464,) and other cases of a similar character. In the former of these cases the principle was recognized, that to render one man liable in trespass for the acts of others, it must appear, either that they acted in concert, or that the acts of the individual sought to be charged, ordinarily and naturally produced the acts of the others; and that one who does an unlawful act is considered as the doer of all that follows — the causa causans — the prime mover of the damages that result; and it was held accordingly, that where a party sold a mill standing upon the lot of his neighbor and appointed a day for the purchaser to take it away, promising to aid him in its removal if assistance was necessary, and the mill was subsequently taken down and removed by the purchaser, that the vendor was liable to an action of trespass, although there was no proof of his being present, or aiding in the removal of the building; and in the latter case it was held, upon the same principle, where the defendant, being engaged in a quarrel with a boy in the street in a city, took up a pick-ax and followed him into the plaintiff's store, whither he had fled, and in endeavoring to keep out of the defendant's reach, the boy run against and knocked out the faucet of a cask of wine, by means of which the wine was lost, that the defendant was liable for the damages. It appears to me however that the present case is distinguishable from those referred to, and the principles which governed them. In this case the issuing of the warrants could not naturally, or ordinarily, produce the act of the sheriff in making the levy long after their power and force would have been expended, if they had been regularly and legally issued. The defendant acted upon the assumption that the warrants were legal and valid, and the sheriff received them under the same assumption. In respect to the latter, as they were regular on their face, they would doubtless have been a protection to him, provided the act under which they were issued was constitutional, (as to which no question is now raised,) and provided he had pursued their tenor. It was not to be presumed that he would do otherwise; on the contrary, the defendant *Page 336 had a right to presume that he would observe the line of conduct which the law would justify, on the supposition that the defendant had full authority to issue them; and if he went beyond that, and committed acts under pretense of the warrants which would have been illegal if they had been valid, I am not able to perceive upon what principle of law or justice the defendant can be held answerable for the consequences.
Nor is he in my judgment liable in consequence of having received the money from the sheriff. It is contended that by doing so he adopted the illegal act of the sheriff and made it his own, and is therefore liable to the plaintiff for the damages. The authorities referred to by the plaintiff's counsel in support of this position all apply to cases of agency, and generally show, that where an agent has exceeded his authority, the adoption of the agent's acts by the principal, makes the latter liable to the same extent as if the acts of the agent had been within the scope of his original powers. That principle has no application to the present case. The defendant was a public officer, and in issuing the warrants he assumed to act officially. The relation of principal and agent, in the sense of the above rule, never existed between him and the sheriff, any more than it does between a justice of the peace and a constable, where the latter is guilty of an irregularity in the execution of process issued by the former, as where he levies an execution upon the property of a person not named therein. The judgment of the supreme court should be affirmed.
RUGGLES, Ch. J., and GARDINER, JOHNSON, WATSON and GRIDLEY, Js., concurred.
JEWETT, J., did not hear the argument, and EDMONDS, J., gave no opinion.
Judgment affirmed. *Page 337