Holbrook v. Brennan

Daly, Chief Justice. This case presents the extraordinary feature that two executions against Patrick Cuff, a judgment debtor, were delivered by the sheriff to Cuff, who was one of the sheriff’s deputies, to execute against himself and by whom they were returned nulla bona. The action was for a false return. The sheriff cannot execute process against himself and where he is a party, the process must be executed by the coroner (2 R. S. 441, § 84). Independent of the statute, this has always been the law (Elston v. Brett, Moore R. 547; Weston v. Coulson, 1 Wm. Bl. 506 ; Vin. Abm. Sheriff, P.; Bac. Abm. Sheriff, M.; Com. Dig. Viscount, E.; Watson on Sheriffs, 51). He might, originally, by the common law, serve the writ for the commencement of the action where he was the plaintiff, “ but,” says Viner, “ if the sheriff be defendant he cannot serve the process against himselfbut it was held at a later period, that he could not serve the process, even for the commencement of the action (Br. Abm. Process, pl. 60 ; 8 H. 6,28; Vin. Abm. Sheriff, P. note). The reason of this rule of the common law, as given by Bacon, is “ to prevent partiality which every one is [48] naturally guilty of in himself” (Bac. Abm. Sheriff, M.); and this reason applies as well to the deputy as it does to the sheriff. It would be absurd to hold, when the sheriff is forbidden to execute process where he is a party, that he may authorize a deputy to execute process against the deputy, and yet this is what the sheriff did in this case. He delivered two executions against his deputy to the deputy to execute against himself. In Sherman v. Boyce (15 Johns. 443), the deputy united with the defendant in making a note for the satisfaction of the judgment, on which money was raised and applied to the payment of the judgment, with the understanding between the deputy and the defendant, that the deputy was to retain the execution in his hands, so that if he were compelled to j>ay the joint note he might enforce the execution by a levy and sale of the defendant’s property, which arrangement was communicated by the deputy to the plaintiff in the judgment, when he paid over to him the money raised upon the note. It was held that although the deputy probably acted from benevolent motives, the whole proceeding on his part was illegal, and that he could not enforce the execution. “ To allow any man,” said Pratt, J., “ to wield the process of our courts in his own fa/oor ; to exact such measure of justice as he may thinh due to himself, would not only lead to oppression and abuse, but would tend to subvert the foundation of private right and civil liberty.” In Mills v. Young (23 Wend. 314), a deputy sheriff who, by neglecting to levy, had made himself liable for the payment of the judgment, gave his note for the amount of it to the plaintiff, and took from the plaintiff an assignment of the judgment, by which he became the party interested in the enforcement of it. He then went to the judgment debtor, and without telling him that he had become the assignee of the judgment, threatened to levy the execution; upon which the defendant gave him his note for the payment of the amount of the judgment, and also paid to him his fees upon the execution and the deputy in his character as deputy sheriff, made an endorsement that the execution was paid. It was held that the deputy could maintain no action against the defendant on the note. “Although,” said Bronson, J., “ it was formerly held that a deputy [49] ■sheriff might serve a capias ad respondendum in his own favor where no hail is required, it is questionable whether he can do so now. But whatever may he the rule in respect to mesne process, it is clear that the sheriff cannot execute process in his own favor. I find no authority for such a practice, and to allow it would be opening a wide door to abuse and oppression.” If, as was held in this case, a deputy sheriff cannot execute final process in his own favor, neither should he be allowed to execute process which is against himself. Indeed, I think that the early case of Elston v. Brett (Moore, 547), may be taken as authority for the proposition that no man can be allowed to execute final process where he has an interest. Carpenter v. Stillwell (1 Kern, 69), is a further illustration of this salutary rule in which Judge W..F. Allen held that it makes no difference in the application of it, whether the sheriff is nominally a party, or only beneficially interested. He cites with approbation the passage quoted from Platt, J., in Sherman v. Boyce (supra), and dwells upon the danger of a perversion of the process of the court by an interested officer. The present case itself is an illustration of the propriety of the rule that a public officer shall not have process put into his hands to execute against himself. This deputy sheriff was, upon his own showing, insolvent. His furniture was mortgaged to his sister-in-law, who lived in the same house with him, and was thereby in possession of it. After one of these executions was placed in his hands, he made a contract for the purchase of a house and lot in this city, for which he was to pay $2,725, $500 of which was to be paid on the signing and delivery of the agreement, and assume the payment of mortgages to the amount of $11,500. One hundred dollars of this amount he paid on the 28th of January, 1871, which one hundred dollars he says he “ took from the sheriff’s office,” and the remaining $400 he paid on the 2d February, 1872, by a check, which he says was for money not belonging to him, but to his wife. This contract, as appears by an endorsement upon it, which is without date, was assigned by him to one Patrick Fay, who, he says, was a friend of his, who advis.ed him to secure the house, as it was for [50] sale. The assignment is for the nominal consideration of one-dollar. Whether Fay paid any more for it does not appear. It does however appear, on the defendant’s showing, that a conveyance under this contract was made on the 12th of April, 1872, by the owner to this Patrick Fay, upon the delivery of which conveyance some one must have paid the residue of the purchase money, payable by the contract, which was $2,225. On the 9th of March, 1872, the other execution was placed in Cuff’s hands, both of which executions were afterwards returned by the sheriff nulla tona. That the $100 which Cuff says he took from the sheriff’s office belonged to Cuff, appears in the-fact that he disposed of it as his own property. The sheriff’s-, counsel argues that it was money collected by Cuff in his capacity as deputy, but that does not appear. He does not say so; nor that he embezzled it; nor that it belonged to the sheriff,, or to any other person. He simply says that he took it from the sheriff’s office which may have been strictly true. He may, from all he says to the contrary, have been entitled to take it, and such would be the presumption, as he paid it away in partial payment of a contract, entered into for his own benefit. The return of these executions, therefore, was a false return.. They were not and could not be executed by the delivery of them to Cuff to act as sheriff. Ho effort was made to ascertain if Cuff had any property upon which they could be levied for in his hands; there was no intention that they should be collected by a levy upon anything belonging to him. Whilst he had one of these executions in his hands he had property, at" least to the extent of $100, which from his acts must be assumed to have belonged to Mm, and which could have been applied to-the satisfaction of this execution. The .return therefore was a false retjirn, and the judgment rendered for the defendant was-erroneous and should be reversed. In an action against the sheriff for a false return, slight evidence is sufficient to put the sheriff upon proof of the truth of the return (Crocker on Sheriffs, § 861). In this case, the fact-that the execution was put in the hands of the judgment debtor himself, and that after it was received the judgment debtor had. [51] a hundred dollars which could have been applied in satisfaction of the judgment, was sufficient." Robinson and Larremore, JJ., concurred. Judgment reversed.