I cannot concur in the opinion expressed, that this execution "was not absolutely void in the hands of the deputy." In the case of Walden v. Davison (15 Wend., 575), relied upon as authority to sustain it, the attorney who issued the execution had the right to issue it, and the sheriff who received it had the right to receive it; it was not void, but merely irregular, for want of adherence to prescribed rules in issuing it, the result of an innocent mistake; in this case the execution had been returned and filed in the office of the clerk of the proper county, and thus placed beyond the legal control of the attorney who issued it, or the deputy who returned it, having become in all respects functus officio; it became then a part of the official duty enjoined upon the clerk to preserve it in the condition in which he received it (1 R.S., 5 ed., 866, § 103), until the court, whose process it was, should otherwise direct. The neglect of this duty (if he permitted the deputy to take it from his files), was a misdemeanor on his part. (3 id., 979, § 53.) And if the deputy, who after procuring the execution from the clerk's office erased his return and the clerk's filing therefrom with intent to defraud, he was guilty of forgery. (3 id., 950, § 25, subs. 1 and 2.) The case is without evidence to show that the defendant was in any way informed of, or that he ever sanctioned these wrong acts of the deputy; and it appears that the deputy retained in his own hands the funds collected, and refused to comply with the plaintiff's demand to pay them over. "Men seldom do unlawful acts with innocent intentions; the law presumes every act in itself unlawful, to have been criminally intended until the contrary appears;" and the burden of disproving a criminal intent is thrown upon the accused. *Page 169 (2 Bishop on Criminal Proceedings, 615.) The presumption of a criminal intent arising from the unlawful acts, is, in this instance, strengthened by the circumstance of his retaining and refusing to pay over the funds collected, but it is quite unnecessary to determine the degree of wrong committed by him. It is sufficient, to render the execution void, that the act of taking it from the clerk's office and erasing the return indorsed upon it was impliedly, at least, forbidden by law (Clark v.Lyman, 10 Pickering, 45, 48), and no more the act of the sheriff, because his deputy proceeded under color of office, than if he had been destitute of process (ex parte Reed, 4 Hill, 572, 573), and hence the judgment should be reversed.
For affirmance, EARL, HUNT and LEONARD, CC.
For reversal, GRAY, C.
LOTT, Ch. C., not voting.
Judgment affirmed.