[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 600
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 601 It is insisted that the action cannot be maintained against both the sheriff and his deputy, though it is conceded that either would be liable separately for a trespass committed by the deputy in the execution of process. If the law were as insisted, in a case where the sheriff had not intermeddled in the transaction, it would not avail the defendants here; for the evidence of adoption and ratification by the sheriff of the seizure made by the deputy and of his subsequent acts is very full and explicit. The motion made by the defendant Westervelt at the trial, to dismiss the complaint, was based upon the allegation that no personal interference on his part had been proved. It was properly denied on account of the incorrect assumption as to the evidence upon that point. The final request to charge that Westervelt was not liable for the acts of Douglass which had been proved, did not raise the question as to the legality of uniting the two as defendants in the action, *Page 602 if the liability of the sheriff could be maintained. The general doctrine of the liability of the sheriff for the trespass or misfeasance of his deputy while acting under color of his office is quite well settled, and was not questioned on the argument. (McIntyre v. Trumbull, 7 John., 35.) Both defendants were sued in this case, in a common law action, as joint trespassers. If the property belonged to the plaintiff, or so far as it belonged to him, the defendants could not protect themselves by the executions against Benjamin Waterbury. The proof of the judgments and executions, and of their own official positions, only showed that they acted upon pretence of performing official duties. Douglass, his deputy, was liable in consequence of his manual act in seizing the plaintiff's goods. If the sheriff could not be united with him in the action as a joint trespasser, in a case in which his liability was established by means of the official relation existing between them alone, yet there was no difficulty in maintaining the joint action upon the evidence of ratification of the wrongful act. Much slighter evidence of ratification has been holden sufficient to charge the sheriff as a trespasser. (Saunderson v. Baker, 3 Wils., 309, 316.) In this case the plaintiffs demanded the goods, which the sheriff's officer had taken, to be returned, and threatened, if it were not done, to sue the sheriff. They answered that they had sufficient security and did not care. GOULD, J., was clearly of opinion that there was an adoption of the fact by the sheriff, and that on that ground the plaintiff was entitled to recover. From that time, he said, the sheriffs became principals in the trespass by recognizing the act of the officer. Thus this action could be sustained against both defendants upon a principle wholly independent of the liability which attaches to the sheriff on account of the official privity between the sheriff and deputy. It is the same thing as though both had gone to the plaintiff's store and together had seized the goods.
But I cannot assent to the position that both may not be sued together, even where the liability of the sheriff arises *Page 603 wholly from his official relation to the deputy. The sheriff is not made a defendant in such cases, in his official character, but simply as an individual. (Stillman v. Squire, 1 Denio, 327.) His relation to his officer may not be the same in all respects as that between master and servant, but still the resemblance is striking and nearly identical. In Colvin v.Holbrook, decided in this court, where the question was whether an action could be sustained against a deputy sheriff to recover money belonging to the plaintiff, which the deputy had received upon the redemption of land sold by him on execution, the relation of principal and agent was taken to furnish the rules upon which the question was to be determined. (2 Comst., 126.) The judgment affirmed the decision of the supreme court in the same case; and in the opinion delivered in that court it was found that the rule regarding the liability of the sheriff was in strict accordance with the principle which holds servants responsible for tortious acts, whether done by authority of their master or not. (3 Barb., 479, S.C.) In Smart v. Hutton (8Adol. Ellis, 565, note), where the sheriff's officer, in executing a fi. fa., committed a trespass upon the person of the judgment debtor, it was held that the sheriff was liable, PARKE, J., declaring that the officer was delegated by the sheriff to execute the writ, and the officer's acts were his, as if he had personally committed the trespass. In Raphael v.Goodman, the principal case to which the note just referred to is appended, LITTLEDALE, J., remarked that the sheriff cannot attend personally to all the duties of his office and therefore employs an officer; but that, he says, is for his own convenience. He is himself identified with the officer, as is clear from all the cases. It is an elementary principle that in torts he who procures a command is equally liable with him who does the act, and they may all be sued jointly or severally at the election of the plaintiff. The deputy in this case is made liable, not from any official relation to the matter, but because he has voluntarily invaded the plaintiff's *Page 604 right of property; the sheriff is made liable, because in law he is considered as having commanded the act to be done. The existence of such command is established by showing the relation between them. So far as the sheriff's liability for the tortious acts of the deputy is concerned, I am of opinion that the rule of principal and agent is the one to be applied. I have not overlooked the case of Campbell v. Phelps (1 Pick., 62), where it was held that an unsatisfied judgment against a deputy sheriff, in trespass for wrongfully levying an execution on the plaintiff's property, was a bar to another action against the sheriff. Upon a careful examination of the opinions of the judges in that case, I have come to the conclusion that the one delivered by Mr. Justice WILDE, who dissented from the judgment, and which was concurred in by Mr. Justice THACHER, is more consistent with legal analogies than the one which prevailed. In this class of cases the deputy and the sheriff are both trespassers at the same time and in consequence of the same act. To hold that they are not joint trespassers is to make a distinction which, I think, the law has not made, and where no difference in principle exists.
On the argument I entertained a doubt whether the recovery could be sustained, arising out of the fact that the issue respecting the bona fides of the transfer of the goods to the plaintiff had been proved against him. That ground was taken on the trial and the answer was not at first apparent. The complaint, I find, charges distinctly that the defendants knowingly seized more goods than were sufficient to satisfy the executions, and that a portion of them remained in their hands after enough had been sold to pay the judgment, which they converted to their own use, except a small part which they returned to the plaintiff in a damaged state. The answer takes issue upon these allegations, as it was necessary it should do, for otherwise a part of the cause of action would have been left unanswered. And this issue has been found in favor of the *Page 605 the plaintiff. It is true that the verdict pronounces the conveyance to the plaintiff fraudulent against creditors, but the only effect of this is to expose the property to judgments and executions against the vendor. So far as the remedies of the creditors did not interfere with the transfer, it was valid. It was good between the parties, and the vendee acquired a good title against wrong-doers; and the defendants must be taken to be such, except so far as they acted in executing the creditors' remedies against the property. They may not have been at fault for taking the whole property, but there is nothing to justify their converting what was not needed to pay the judgment, or injuring any of it.
The judgment of the superior court ought to be affirmed.