Coite v. Lynes

Butler, J. The question involved in the issue made by the motion in arrest is the same as that made by the first [113] rixling of the court. It is whether a sheriff is liable on his bond for the malfeasance of his deputy. In the case set out in the declaration,in which the tort was committed, the deputy, at the direction and request of the plaintiff, went out of his line of duty and the command in his precept and took the property of a third person not named in the writ and execution. The direction of the plaintiff saved the deputy from liability over to him, and the act was not one of neglect or default, for there was no omission of duty. But he went beyond his authority, whether by the mistake or wantonness of the plaintiff who directed him does not appear, and committed a trespass on a third person. In England and some of the states of this country the sheriff would be liable for the act, and he alone could be sued, because the common law recognizes the deputy as only the agent or servant of the sheriff, and the act was done “ colore officii.” But in this state the deputy is made substantially au independent officer, and can be sued alone primarily for his torts; and independently of the statute the sheriff is not liable for them. It does not consist with justice, or the analogies of the law, to clothe a deputy with all the independent power given him by our statutes, and direct a writ to him to serve independently of the sheriff, and hold the sheriff liable for the malfeasances of the deputy, unless the statute requires it, or to any greater extent than the statute requires.' Hence Judge Sanford, in giving the opinion in Dayton v. Lynes, 30 Conn., 356, said: — “ A deputy sheriff duly appointed and approved now executes all the duties of his office entirely independent of the sheriff, and not as his bailiff or servant. Writs may be directed to him alone without naming the sheriff, and by the express provisions of the statute he has the same powers as the sheriff himself. The negligencies and defaults of the deputy, therefore, so acting independently of the sheriff on his own authority derived from the law itself, and not from the sheriff, ought not to be considered and treated as the personal torts or defaults of the sheriff; and hence we suppose the express provisions of the statute making him responsible for them were enacted by the legislature.” It follows logically from these facts and doc [114] trines that the sheriff is liable by force of the statute only, and to the extent that the statute makes him liable and no farther. We turn then to the statute to ascertain the liability of the deputy to the sheriff, and that of the sheriff on the bond which lies at the foundation of this action. The provision which required the sheriff to give the bond in question and prescribes the condition, is found on page 790, sec. 5th of the compilation of 1854, (Revision of 1866, p. 670,) and the language is, “ conditioned that he will faithfully discharge the duties of his office and answer all damages which any person may sustain by his unfaithfulness or neglect in discharging said duties; ” and the condition of the bond given in this case Is a substantial compliance, for it is that the bond shall be void if he “ faithfully discharge the duties of the said office and answer all damages which any person or persons may sustain by any unfaithfulness or neglect in the same.” The provision in the 13th section which imposes the liability on the sheriff for the acts of the deputy is, that “ sheriffs shall be responsible for the neglect and default of their deputies in the execution of their office,” and in sec. 17, in connection with a provision for the continuance of the powers and liabilities of deputies and jailors after the death of a sheriff until another is appointed and qualified, it is further provided that “ the defaults and misfeasances of such jailors and deputy sheriffs after the decease of the sheriff, shall be a breach of the bond executed by such sheriff for the faithful administration of his office.” These three sections contain all that relates to the subject. The language of the first is “ unfaithfulness and neglect; ” of the second, and the original provision respecting deputies, “ neglect or default; ” and of the third, “ defaults and misfeasances.” The latter was enacted in 1804, and originally contained the words “ as well as before,” which were omitted by the revisors in 1848. In Dayton v. Lynes, 30 Conn., 357, Judge Sanford expressed the opinion that they were dropped because deemed immaterial, and in that opinion we concurred. For a misfeasance strictly is a default in not doing a lawful act in a proper manner — omitting to do it as [115] it should be done — while a malfeasance is the doing of an act wholly wrongful and unlawful, and non-feasance is an omission to perform a required duty at all, or total neglect of duty. Bouvier’s Law Diet., in verba. The term misfeasance is often carelessly used to describe a malfeasance, but construing the statutes together, as we must, and looking to the words originally inserted and dropped, it seems clear that the legislature did not intend to extend the liability of sheriffs, even in the particular contingency contemplated in the 17th section, beyond that provided in the original act which makes both sheriff and deputy liable for “ neglects and defaults ” only. The liability of the sheriff then on his bond for the misconduct of his deputies, is for their neglects and defaults to the injury of the parties to the suit, and does not embrace a wilful or mistaken trespass in taking the property of a third person to the injury of such person only, although done under color of office and attempted to be justified by process. A different rule prevails in Massachusetts, as appears by the cases cited, but their statute makes the sheriff u responsible for all his deputies ” generally and without limitation, and for all their conduct under color of office, as at common law, while ours limits that responsibility to neglects and defaults. We are therefore of opinion that sheriff Yan Zandt was not liable for the torts committed by deputy Morris upon the plaintiff and that judgment must be arrested because the declaration does not show a sufficient cause of action. As this disposes of the case it is unnecessary to examine the other rulings. It may however be well to add, that if we were of opinion that the claim was valid we should hold that it was one which could have been legally presented against the estate of the deceased sheriff and was barred because not presented in time. A new trial is advised. In this opinion the other judges concurred ; except Park, J., who having tried the case in the court below did not sit.