Walter v. . Middleton , 68 N.Y. 605 ( 1877 )

It is difficult to sustain the judgment in this case on the ground upon which the verdict appears to have been directed. The evidence shows that Middleton, the deputy, was well acquainted with Rogers, the execution debtor, and could have found him, and it was admitted on the trial that Middleton might and could, but omitted to and did not, arrest Rogers while the process was in his hands. His returning the process and omitting to arrest Rogers was a clear breach of duty which rendered him and his sureties liable to the sheriff for any damages sustained by him in consequence thereof. The fact that the under sheriff, as well as Middleton, knew Rogers' whereabouts was no excuse to Middleton. On the contrary, the case shows that the under sheriff urged Middleton to make the arrest, and cautioned him that he might subject the sheriff to liability by not doing so. The evidence fails to show that the sheriff personally connived at the failure to arrest Rogers, or knew that he could be arrested. The fact that the place of residence of Rogers was stated in the undertaking in the sheriff's possession does not establish that he knew that the return that Rogers could not be found was false, nor was the knowledge of the under-sheriff, in that respect, imputable to the sheriff, as between the sheriff and his deputy. The deputy knew that it was his duty to the sheriff to execute the process if he could, and if not to make a true return. He cannot set up in defence of a violation of that duty that the under sheriff knew that the return was false. Even if the under sheriff had combined with the deputy to make a false return, such action of the under sheriff would not have excused the deputy, but would have rendered both of them liable to the sheriff. It was the duty of both to protect the sheriff from liability, and as between him and them, neither could set up the wrongful act of the other to which he was a party. The evidence, however, is that the under sheriff urged Middleton to search for the execution debtor and cautioned him against rendering the sheriff liable.

But there is another ground upon which we think that the direction to find a verdict for the defendants should be sustained. It fully appears in the case that after the false return had been made, and before any action therefor had been brought, Rogers, the execution debtor, was surrendered by his bail to the sheriff, who took him into custody, but before the bail had taken the necessary steps to exonerate themselves from liability on their bond, wrongfully discharged him and prevented the bail from obtaining an exoneretur. (See Cozine v.Walter, 55 N.Y., 304.) But for this wrongful act of the sheriff, the bail would not have been compelled to pay the judgment of Gibson against Rogers, and they might never have brought the action against the sheriff, the judgment wherein is the foundation of the present action. The fault of the deputy in not making the arrest having been remedied by the surrender, and the damages sustained by the sheriff having been occasioned by his own subsequent wrongful act in discharging his prisoner, he should not be permitted to fall back upon the original fault of the deputy for the purpose of rendering him and his sureties liable for those damages.

The judgment should be affirmed.

All concur.

Judgment affirmed.