11 N.Y. 61, Carpenter v. Stilwell

Citation:11 N.Y. 61
Party Name:CARPENTER v. STILWELL and another.
Case Date:June 01, 1854
Court:New York Court of Appeals

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11 N.Y. 61

CARPENTER

v.

STILWELL and another.

New York Court of Appeal

June 1, 1854

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COUNSEL

Edward Sandford, for the appellant.

Samuel Beardsley, for the respondent.

W. F. ALLEN, J.

The sheriff was adjudged guilty of a contempt in the wilful neglect and refusal to return the executions against the plaintiff, upon which he subsequently sold his real estate, including the premises in question, and was ordered to pay to the judgment creditors a fine to the amount of their respective claims, as the damages which they had sustained by his default, together with the costs of the proceedings against him.

The only question of any importance is, whether a sheriff who by reason of his neglect to execute final process has been compelled, either by action or by proceedings as for a contempt to satisfy the claim of the execution creditor, can enforce the process against the property of the debtor for his own benefit and indemnity. The jury have found that the assignment of the judgments to the son of the sheriff was not upon a purchase by him or for his benefit, but was colorable and for the benefit of the sheriff and for his indemnity; and that the money to the amount of the judgments, and which was the only consideration of the assignments, was paid by the sheriff to the plaintiffs in the judgments, in satisfaction of the fines imposed upon him. As the sheriff could not do that indirectly which the law

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would not tolerate directly, the legal rights of the parties will not be varied by the form or disguise which the actors have given to the transaction. It was in substance and effect a payment of the judgments by the sheriff and an assignment thereof to him, and an attempt to enforce their collection for his own benefit. (Bigelow v. Provost, 5 Hill, 566.)

At the time of the sale of the property in question, the sheriff by whom the sale was made was the party and the only party beneficially interested in the execution of the process; and to allow an officer to wield the process of the courts in his own behalf, is contrary to well settled principles of public policy and would lead to great abuse. (Per Platt, J. in Sherman v. Boyce, 15John. 443.) A sheriff cannot do execution when he himself is a party, and therefore an extent by him where he is conusee will be void. (Com. Dig. Viscount, E. 1.) By statute, process in actions in which the sheriff is a party, must be directed to and executed by the coroner of the county; (2 R. S. 441, § 84; ) and whether the sheriff is nominally a party or only beneficially interested cannot affect the question. If he owns the judgment upon which the final process issues, it is process in his favor, although he may not be a party to the record, and his name may not appear in the writ. This was in effect decided in Mills v. Young, (23 Wend. 314, ) in which the court say "a sheriff cannot execute final process in his own favor" and apply the principle to a case in which the deputy sheriff having become liable for the debt gave his own note to the judgment creditor, took an assignment of the judgment, and afterwards under a threat to enforce the execution, procured the debtor to give his note for the amount. The note was declared to be void. The danger of a perversion of the process of the court by an interested officer, is greater when the fact that the officer charged with its execution is the party in interest, is concealed, than when it is apparent upon the face of the process itself; and if policy forbids the execution by an officer of process to which he is a party by name, a fortiori should the execution of process by him, nominally in favor of others but really in his own favor, be forbidden. I am

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of the opinion that the acts of the sheriff for his own benefit in the execution of the final process of the court upon the judgments against the plaintiff, and the sale and conveyance by him of the premises in question were void; that when he became the owner of the judgments his power to act as sheriff under the executions ceased, and that his only remedy, if any he had, was to sue out a new execution to the coroner of the county.

But in this case, still back of the proposition considered and which I deem fatal to the defendants in this action, is the question made upon the trial and mainly relied upon in this court, whether the sheriff under the circumstances having become liable to the judgment creditors for the amounts of their judgments and been compelled to satisfy them, could be subrogated by assignment or otherwise, to the rights of the creditors, and entitle himself to enforce the judgments for his own indemnity.

It is not so much a question of individual right as of public policy. It is fit and proper that the judgment debtor should be made to pay his debts, and it is the province and business of the sheriff to whom process is issued to compel him to do so, by a proper, vigilant, and seasonable performance of his duty; but it is not discreet or consistent with just views of policy, by any inducements to encourage a lax or careless discharge of the responsible duties devolved upon sheriffs. If an officer intrusted with the execution of final process, may without peril of ultimate loss, select his own time for its execution, he may seriously interfere with the rights of the creditor by delaying the process to his prejudice, and he may at his option employ the same process to annoy and oppress the debtor and to make gain to himself. Both the debtor and creditor will be in a measure subject to the caprice of the sheriff, and serious inconveniences will result, if rights either equitable or legal are held to result to a sheriff from his own breach of duty. While it has ever been the policy of the law to protect an officer within proper limits from loss or damage in the faithful discharge of his duties. it has done nothing to encourage or protect him in the neglect or violation of those duties. The consequences of all violations

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of duty have been visited upon him, and he has not been supposed to be entitled to any equities beyond those which enure to any other wrongdoer.

The proceedings upon the attachment against the sheriff and the payment by him of the fine to the judgment creditors to the amount of their claims, was a satisfaction to them, and the plaintiffs therein had no further claim upon the sheriff in respect to the executions or right to enforce them against their debtor. The executions had fully accomplished their purpose, which was to raise the money to satisfy the judgment creditors, and that...

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