McKinley v. Tucker

The courts have doubtless gone a great ■way to relieve the sheriff from responsibility for the neglect of his deputy, when the circumstances were such as to authorize the inference that such neglect was occasioned by the improper interference of the plaintiff in the execution. After a levy has been made, almost any interference with the duties of the deputy would operate to relieve the sheriff from liability. But when the deputy, relying upon the defendant in the execution to pay it, and for his special accommodation, has suffered the execution to run out in his hands and the consequent liability of the •sheriff has become fixed, it is not perceived how the mere passive acquiescence of the plaintiff in a further delay in order to give time to the deputy and defendant in the execution to make the money, can be said to operate ipso facto as a release of the cause of action against the sheriff".

It will be observed, that according to the plaintiff’s evidence, which is hardly contradicted or impaired by that of Mr. Dada, he absolutely refused to take the notes or have anything to do with them himself, or to make any agreement or do anything that would relieve the sheriff; but that he was finally prevailed upon to say that he would let the matter stand just as it was until the notes matured. *100Mr. Dada wanted a line to the deputy to show that he, (the plaintiff,) would not prosecute' till the notes became due, and drew up a note to the sheriff" which the plaintiff signed, in which the plaintiff said to the deputy: “You take the notes * * * and hold till due * * * and I will not hurry you on execution.” If the execution had not already run out, doubtless such a writing would have .been fatal to the plaintiff’s remedy against the sheriff for not returning it.

The learned referee held as matter of law, that the deputy thereupon assumed the office of private agent, and held over and delayed the collection of said execution upon the presumed assent of the plaintiff or his attorney until July 22, 1863, when the plaintiff by the execution and delivery of said writing, and other circumstances before described, made said Folger (the deputy) his agent, “ and adopted and ratified the prior acts of said Folger in the matter of the collection of said execution.”

If this conclusion is warranted by the writing and other circumstances detailed in the evidence, as a matter of law, it is a conclusion directly against the declared intention of the plaintiff* when he signed .the writing, and the obvious understanding of all the parties. If, however, we construe the writing in the light of the plaintiff’s evidence and by the aid of the circumstances appearing upon the trial, the most the plaintiff* would or did agree to, was, that he would not prosecute the sheriff, or in other words, ‘■'•'hurry the deputy on the execution,” until it was known whether or not the notes would be paid. •

The evidence has satisfied me, that all the parties understood the sheriff’s liability had become fixed by the omission of the deputy sheriff to levy or return the execution ; and under these circumstances, the plaintiff relying upon his remedy against the sheriff, refused to interfere or promise anything, except that he would forbear to resort to his remedy against the sheriff, until the deputy *101should have an opportunity of making the money out of the two notes, which the defendant Dada had gotten up for that purpose. If the writing is made to operate in a way to destroy the plaintiff’s remedy against the sheriff, then I think he has been evidently overreached, and induced to sign a paper which did not express his intentions. Under the circumstances, I am of the opinion that it will bear a different interpretation; and that the plaintiff only agreed, that if the deputy took the notes, and held them until due, he would in the meantime forbear to take his remedy against the sheriff for not returning the execution.

Such an agreement is in no way prejudicial to the sheriff, but rather for his benefit, as well as that of the deputy, who is liable over to the sheriff. It, in legal effect, .reserves the right to prosecute the sheriff, and there is no principle of law or morals that would justify the sheriff in taking advantage of it to escape liability.

It may be asked, with great pertinence, what duty the deputy owes to the sheriff or any body else, except the plaintiff, after he has suffered an execution to run out in his hands for over two months after the return day, for the accommodation of the defendants in such execution. The law does not impose any further duty upon him, except it be to return the execution, not for the benefit of the sheriff, but to enable the plaintiff to take his remedy against the sheriff.

But here the deputy did not assume a new duty or obligation inconsistent with his official duty; for his official duties were ended, except to return the execution. That duty continued, but he was prevailed upon by the defendant to abstain from its performance a short time longer, to give him an opportunity to pay the execution out of the proceeds of certain notes which he exhibited to the deputy. The deputy, it may be assumed, was fearful that if he waited till the notes matured, before returning the execution he would be ruled to return-it, and the sheriff would *102be sued. The defendant in the execution, therefore, proposed to see the plaintiff, who was alone interested in hurrying up the deputy, and procure his consent to the delay. The plaintiff was seen accordingly; and was finally prevailed upon to say that he would not proceed against the deputy or sheriff until the notes became due. He therefore writes to the deputy that he would not “ hurry” him oh the execution until the notes matured. This is the substance of the whole transaction.

There is no solid ground of principle upon which such a promise of the plaintiff to forbear his remedy against the sheriff for a short time, to give the defendant an opportunity to pay the execution, can be construed into an interference with the official duties of the deputy sheriff*, or as an act prejudicial to the sheriff*; or as a ratification of th'e prior delay of the deputy, which created the liability. On the contrary, the plaintiff, by the very terms of the arrangement, refuses to ratify the prior delay, or to abandon his claim against the sheriff.

The cases cited by the respondent’s counsel do not lay down any rule inconsistent with this conclusion. In Gorham v. Gale, (6 Cowen, 467,) the deputy, in making sale of the land of the defendant in the execution, acted under the instructions of the creditor, and took a course out of the line of his duty as a public officer, by giving credit and selling the land for less than the execution. In Corning v. Southland, (3 Hill, 552,) the proposal of the plaintiff to the deputy to take a note, was before the return day ; yet as it was not got up according to the proposal, the sheriff was held responsible for not returning the execution. In Mickles v. Hart, (1 Denio, 548,) the instructions to the deputy were to make a levy, and do nothing more until further instructions. • After four, months the plaintiff directed the deputy to sell, which he neglected to do until it was discovered that the property had been removed, and could not.=be found; and it was held that the sheriff" *103was not liable for the default of the deputy in not collecting the execution. In this cáse, it is clear that the plaintiff had taken the matter into his own hands from the beginning. And in Sheldon v. Payne, (3 Seld. 453,) the deputy refused to follow the plaintiff’s instructions. Buggies, Oh. J., says: “ The deputy neither acted in the line of his duty as prescribed by law, nor did he obey the directions, or act within the authority given him by the plaintiff.” And it was held that the sheriff was liable, as the deputy sheriff did nothing in conformity with the instructions.

Bone of these cases decide that the sheriff is discharged by the promise of the plaintiff, that he will not take his legal remedy against the deputy or sheriff for a liability already incurred, until a future day, although the object of it is to give the defendant in the execution time to pay it before it is actually returned. Such an arrangement is more for the benefit of the sheriff than the plaintiff in the execution, is humane towards the defendant, and ought not to be discoui’aged.

The judgment should be reversed.

Doolittle, J., concurred.

Mullin', J., dissented.

Judgment reversed, and a new trial granted, with costs to abide the event.

Mullin, Morgan and Doolittle, Justices.]