James v. . Gurley

*166 Earl, 0. After the deputy sheriff Houghton had returned the execution in the case of Robinson & Parsons v. Thomas B. James to the clerk’s office, hy the consent of the attorney for the plaintiffs therein and of the county clerk, he procured the same from the clerk’s office and erased therefrom the return he had made thereon. He then made the levy and sale, and realized the money recovered in this action. He levied upon and sold the property, claiming to act as deputy sheriff. This execution was not absolutely void in the hands of the deputy. It was still process of the court, and was merely irregular. The court, upon application of the deputy sheriff, could have authorized its withdrawal from the clerk’s office and the cancellation of the return and filing, and it would then have been valid and regular process in his hands. (Barker v. Bininger, 14 N. Y., 271.) And even after the second return of this process the court could, nunc pro tuno, have canceled the first return and filing, and thus validated the other proceedings under the execution. All this shows that the process was not absolutely void. If it was, the court could not validate it. Hence, the deputy sheriff realized this money upon process simply irregular; and this being so, the defendant, as sheriff, is liable for it. In The People v. Dunning (1 Wend., 16), a deputy sheriff collected money upon an execution which had been issued without seal. The deputy kept the money and was insolvent. The court say: “ The only question is, whether the preeess is void or erroneous % The sheriff supposed it void, and that the sureties of the deputy were not •responsible to him for the money received on the execution. ■This is a mistake. The process was erroneous and not void, and, therefore, amendable; and the money having been received by the deputy, colore officii, his sureties are liable, and the sheriff is responsible to the plaintiff. The party not having applied to set aside the execution, the sheriff cannot avail himself of any defects in it, and must pay the money or stand committed.” In Walden v. Davison (15 Wend., 575) *167 the point decided as embodied in the headnote is as follows: “Where the deputy of a sheriff receives an execution commanding, not his principal, but the sheriff of another county, to make the money for which the process issues, the deputy may refuse to execute the writ; but if he does proceed and collect the money, having become possessed of it under color or by virtue of his office, his principal is liable to the plaintiff, for the money thus collected, in an action for money had and received. The execution in such case being avoidable merely, is amendable.” The execution, in the body of it, commanded the sheriff of Cattaraugus instead of the sheriff of Allegany, of which Davidson was the sheriff. In this case the deputy sheriff could have left the execution in the clerk’s office and have stood upon the return he had made, and even after he had got it back from the clerk’s office he could have refused to have acted under it on the ground that it would not protect him as against the defendant in the execution. But having taken the execution and acted upon it, he cannot now set up its irregularity. Having treated it as valid process, neither he nor his principal can refuse to answer for the money. It is not true, as claimed by the learned counsel for the appellant, that a sheriff is not liable for acts of his deputy done by color of his office merely, and that he is liable only for those acts of his deputy which he does strictly by vvrtue of his office. The true rule is laid down by Mr. Justice Bkonson, in Walden v. Damison, supra, as follows: On ascertaining whether the sheriff is answerable for the acts of his deputy, the question is whether the latter did an official or mere personal act. If the act is personal only, and does not relate to his duty as an officer, he is not the agent or servant of the sheriff; but if he execute process under color or by virtue of his office, the sheriff is answerable for the consequences. It is not necessary to charge him that the act of the deputy should in all- eases be lawful, or one which he might rightfully do under the process, if it were so. The *168 sheriff would not he liable where the deputy takes the property of some other person than the judgment debtor. Within the rule here laid down, which is fully sanctioned by principle and authority, the sheriff in this case is answerable for the act of his deputy, and must respond for the money in his hands. The judgment should be affirmed with costs.