Seeley v. Birdsall — 15 Johns. 267

Majority

p. 267

Seeley against Birdsall.

Headnote

Anactipn or, ga!nsCtaesheriff tarn, ¡í'withfú oMheT/or ffeMiRngincerIain sriitsJ, 1801. sess. 24. Ñ. R. L. 155.) tuns^oundto cause of action y”se county™ ja¡dMshvenueS is, a distinction be-’•ween acts done colore officii, and virofficii: in the former case, the act being of such a nature that his office gives him no authority to do it, the sheriff is not Erotected by the statute: but where in doing an act within the limits of* his authority, he exercises is authority improperly, or abuses the confidence which the law reposes in him, these are cases to which the statute applies.

THIS was an action on the case against the defendant, late sheriff of the county of Seneca, for a false return on a writ of fieri facias issued out of this court, at the suit of the plaintiff against W. I. Seeley. The cause was tried before Mr. J. Spencer, at the circuit in Cayuga county, where the venue was laid, in June, 1817.

The plaintiff recovered a judgment against W, I. Seeley for 3,988 dollars of debt, and 14 dollars and 4'3 cents damages and costs. A fieri facias was issued thereon, to which the defendant returned, that he had sold all the goods and chattels of W. J. Seeley to be found in his bailiwick, and that he had made out of the same the sum of 10 dollars and 25 cents, and that he had advertised for sale all his right _ o and title to a certain lot of land. It was proved that one of the defendant’s deputies had levied on property of W. I.

p. 268

Sééley, to the amount of three or four hundred dollars j thas the defendant recognized the levy; and that being requested by the plaintiff to sell, he refused, aqd never had sold the property levied on.

The defendant’s counsel moved that the court would charge the jury to find a verdict for the defendant, because the plaintiffhad not proved any act done by the defendant in the county of Cayuga., The judge, however, charged the jury to find a verdict for the plaintiff, subject to the opinion of this court, and they, accordingly, found for the plaintiff.

Sill, for the plaintiff.

The defendant claims a privilege, or exception, which is to be taken striqtly. The act (1 N. R. L. 155.) requires the fact or cause of action to be proved to have arisen in the county where the venue is laid. What is the fact or cause of action in this case ? The return of the writ. From the nature of the act of making the return, it is impossible to prove where it was made. It is a private act, and not within the intent of the statute, Ifit is necessary to show where it was done, the court will intend that it was done in the county where the venue is laid. All presumption is against privilege ; and in support of justice the court will presume in favour of the plaintiff, and throw the proof of the contrary on the defendant. In Bogert v. Hildreth, (1 Caines, 1.) a mere transitory action was held not to be within the county. In Storm v. Floods, ( 11 Johns. Rep. 116 .) which was an action for a false return against the sheriff of Washington, the cause was tried at Albany. There are numerous cases of actions forescapes, in which this objection was never made. (2 Caines, 46. 4 Johns. Rep. 45 . 469.) The action for a false return is transitory, as the sheriff may make and deliver his return any where. (Griffith v. Walker, 1 Wils. Rep. 336.)

Cady, contra.

The privilege granted is not for the mere personal benefit of the sheriff, but for the sake of public convenience; as, otherwise, a sheriff might be called out of his county into every county in the state, to defend suits against him, to the great injury of the public business in

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trusted to his charge. Since the statute of 21 James I. ch. 12. which, except that sheriffs are not named in it, is similar to our act, actions against officers, which would otherwise be transitory, are regarded as local.

In Lord v. Francis, (12 Mod. 408. S. P. Anon. 515.) it was held that an action for a false return was local, and the venue might be laid either in the county where the return was made, or in that in which it appeared of record. (1 Comyns. Dig. 164, 165. 168. Action. (N. 8.) (N. 11.)) Such was the law before the statute which has made no further change than to confine the action to the place where the act was done, instead of its being, also, laid in the place where the record is kept. The cases in this court, which have been cited were actions of debt, not actions on the case. At any rate, the venue should be laid in the county in which the sheriff resides, for there, it must be presumed, that he does all his official acts.

An action on the case against a sheriff for a false return on an execution, is within the first section of the statute, (1 JV L. 155.) “ for the more easy pleading in certain suits and, consequently, the burthen of the proof, that the cause of action arose within the county wherein the venue is laid, is thrown on the plaintiff, and the failure to give that proof entitled the defendant to a verdict of not guilty.

The words of the statute are very plain and perspicuous. If any action upon the case be brought against any sheriff, &c. for or concerning any matter or thing by him doni, by virtue of his office, the said action shall be laid within the county, where the trespass or fact be done and committed, and not elsewhere; and if upon the trial, the plaintiff shall not prove that the cause of his action arose within the county wherein such action is laid, in every such case, the jury which shall try the same, shall find the defendant not guilty, &c.

The case of Griffith v. Walker (1 Wils. 336.) which considers an action against a sheriff for a false return as transitory, was prior to the statute rendering actions against sheriffs for acts done by virtue of their offices local. The true distinction is between an act done colore officii, and

p. 270

virtute officii; in the former case the sheriff is not protecled by the statute, where the act is of such a nature that his office gives him no authority to do it; but where in doing rbm. within the limits of his authority, he exercises that authority improperly, or abuses the confidence which the láw reposes in him, to such cases the statute extends.

New trial granted.