Miles v. Richwine

The opinion of the court was delivered by Gibson, C. J. — It is settled, that an officer cannot apply an execution in his hands to the satisfaction of his own debt. In Codwise v. Field, 9 Johns. Rep. 263, the coroner having a Capias ad Satisfaciendum against the sheriff’, to whom he was indebted, gave him a receipt in full, and engaged to settle- the amount with the plaintiff, but failed to do so; and it was held, that this arrangement did not discharge the execution, actual payment alone being competent to produce that effect. So, in the Bank of Orange v. Wakeman, 1 Cowen, 46, where a sheriff’s deputy took the defen [201] dant’s negotiable note, gave a receipt, and returned the execution, satisfied; it was determined that the defendant was still liable. As regards the debt due by Monies to Miles, on his own right, these cases are exactly in point. But the case of two constables agreeing to set off executions in their hands, against each other, is clearly within the principle established by them; inasmuch as such an arrangement would substitute the officer for the defendant. It might not, therefore, be an idle ceremony, as it has been called at the bar, to enforce the payment of money on the one execution, to have it paid back the next moment on the other. If one of the defendants were insolvent, and the other not, the set-off would effect an injurious change of liability, by substituting an insolvent constable for a solvenfdcfendant; and so, viceversa. To avoid this, and other mischiefs, the law will not endure the mingling of private transactions with official duties. Had Monies collected the money on the plaintiff’s execution, he might, no doubt, have embezzled it; but he might also have proved faithful to his trust; and in the worst event, the plaintiff could have been reduced only to the situation in which the attempted arrangement, had it been successful, would have left him. Miles, therefore, cannot be permitted to obtain his debt from Monks, and at the same time, pay a judgment creditor, at the expense of the plaintiff. Judgment affirmed.