16 N.Y. 439, Decker v. Judson

Citation16 N.Y. 439
Party NameDECKER v. JUDSON and others.
Case DateDecember 01, 1857
CourtNew York Court of Appeals

Page 439

16 N.Y. 439

DECKER

v.

JUDSON and others.

New York Court of Appeal

December 1, 1857

Page 440

[Copyrighted Material Omitted]

Page 441

COUNSEL

Amasa J. Parker, for the appellant.

Francis Kernan, for the respondent.

PAIGE, J.

The appellant makes the following points, viz.: First. The bond is void, because taken by the sheriff colore officii, and not in a case provided by law; Second. It is void, independent of the statute against taking instruments colore officii, because it was nudum pactum in the sheriff's hands; Third. The bond having been executed by Judson after the sheriff was discharged from liability by the omission of Decker to except to the sureties, it is not embraced in the provisions of the statute, and the plaintiff cannot therefore support an action upon it; Fourth. The Circuit Court had no power to require the plaintiffs to renew their sureties, nor to require the existing sureties to justify, and the order made did not authorize the addition of a surety; Fifth. The appellant's engagement was that of co-surety with Evans and Bennett, and the Supreme Court having decided that the action could not be maintained against Evans and Bennett, the appellant is deprived of his right to call on them for contribution; Sixth. The plaintiff cannot recover because no assignment of the bond was made after the judgment of 1851.

Page 442

The replevin bond was not taken by the sheriff by color of his office in a case not provided by law. (2 R. S., 286, § 59, 1st ed.) Color of office is defined as characterizing an act wrongfully done by an officer under the pretended authority of his office, and "grounded upon corruption, to which the office is as a mere shadow of color. "(1 Bouv. L. Dic., 244; Wharton's L. Lex., 177; Tomlin's L. Dic.) 1 Color of office, when applied to the taking by a sheriff or other officer of a written security, ex vi termini, implies that the security is "unlawful and unauthorized, and that the legal right to take it is a mere color or pretence. " (23 Wend., 608, per Chancellor WALWORTH.) 2 It does not follow that a security taken by a public officer is unlawful because it is not expressly authorized by statute. Many securities taken by public officers have been upheld, if valid at common law, although not sanctioned by any statutory enactment. An agreement of a third person, on receiving property levied upon by a sheriff, to deliver it to him on request or pay the amount due on the execution, is a security of this character. (21 Wend., 605; 23 id., 607, 608.) In error, where the security taken by the officer is not unlawful either under any statute of the state or at common law, it cannot be regarded as taken colore officii in a case not provided by law, and therefore it cannot be void under the fifty-ninth section of the article of the Revised Statutes relative to the powers and duties of certain judicial officers. (2 R. S., 286.) Where the agreement does not provide for an indemnity to the officer for a breach of duty, and does not necessarily produce an injury to either the plaintiff or the defendant, and is not condemned by either the common or statute law, it cannot be held void as taken colore officii (23 Wend., 607, 608, per Chancellor WALWORTH.) Sheriffs and other officers who take bonds and securities from persons under legal restraint, are held to a strict compliance with the statute under which they are taken, in order to prevent oppression and abuse of power on the part of the officer. But a replevin

Page 443

bond, being given by a plaintiff who is under no restraint, does not come within the principle applicable to securities taken by public officers from parties while under arrest. (3 Comst., 192; 1 id., 367, 368.)

The title of the Revised Statutes in relation to the action of replevin required the plaintiff to give a bond to the sheriff with at least two sureties; but the bond was not held to be void for not having two sureties. The defendant could have applied to set aside the plaintiff's proceedings for this defect, as he could have excepted to the sufficiency of the bond, but the plaintiff would have been allowed to amend. The provision of the statute requiring two sureties was decided to be a provision for the benefit of the defendant in the action of replevin, and he was held at liberty to claim a strict compliance with the statute in this respect, and indeed as to all matters which were unimportant to the plaintiff; and Judge RUGGLES, in laying down the rule on this subject in Shaw v. Tobias (3 Comst., 192), says, that "after the plaintiff has obtained possession of the property in dispute by acting on the bond as a lawful and valid security, neither he nor his surety ought to be permitted to get rid of it by alleging that it is not so strong or so perfect as the defendant might have required him to make it. " The statute declaring void securities taken by public officers colore officii has no application to a security taken by a party at whose suit an arrest is made. The latter may take any security he pleases on discharging his debtor from arrest, but the officer is confined to the security prescribed by the statute. (1Comst., 368; 6 Cow., 465; Richmond v. Roberts, 7 John., 319; 19 Wend., 188; Strong v. Tompkins, 8 John., 98; 5 Wend., 61.)

In this case, when, on the application of Nash and Gardner, the order of the Circuit Court was made, putting off the trial upon condition they renewed the sureties in the replevin bond, or caused the then existing sureties to justify, the sheriff, by the omission of Decker to except to the sureties within the time required by law, was discharged from

Page 444

all liability for the sufficiency of the sureties, and the bond of the plaintiffs was, by virtue of an express provision of the Revised Statutes, then held by the sheriff for the exclusive security of the defendant. (2 R. S., 527, §§ 28, 32.) The order did not require the sheriff to renew the securities, but it imposed upon the plaintiffs personally the renewal of their sureties as a condition of the postponement of the trial. The act of the renewal of the sureties, by causing the bond to be executed by Judson, was not the act of the sheriff, but of Nash and Gardner. It was an act done in pursuance of the order of the court, to which the plaintiffs and defendant in the replevin suit alone were parties; and the defendant, by his acquiescence in that order, must be presumed to have accepted Judson as a surety in place of the previous sureties, or as co-surety with them. The sheriff had at that time no interest in the original bond or in the renewal of the sureties. He had previous to the order become discharged from all liability for the sufficiency of the sureties, and then held the bond merely as a trustee for the defendant. He did not take or exact the new bond, either in his individual character or as sheriff virtute officii. It was executed by Judson, for the benefit of Decker, in pursuance of an arrangement between the parties, presumed to have been entered into from their acquiescence in the order. These being the facts, the provisions of the title in relation to the action of replevin, and the section declaring void securities taken by public officers colore officii, have no application to the execution of the bond by Judson or to the bond after such execution. The fact that the obligee named in the bond is a person other than the present plaintiff is no objection to its validity; nor does the description of him as sheriff subject the bond to condemnation, under the section of the Revised Statutes against securities taken colore officii. It was admissible at common law, independent of the statute, to make the bond payable to the sheriff, as the agent or trustee of the plaintiff, for the sole benefit of the...

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63 practice notes
  • 84 N.Y. 222, Toles v. Adee
    • United States
    • New York New York Court of Appeals
    • 1 Marzo 1881
    ...95; 1 Bouv. Law Dict. 244; Wharton's Law Lex. 177; Tomlin's Law Dict.; Burrall v. Acker, Page 225 23 Wend. 606, 608; Decker v. Judson, 16 N.Y. 439, 442; Martin v. Campbell, 37 Barb. 179, 182; Shaw v. Tobias, 3 N.Y. 188, 192; Burrall v. Acker, 23 Wend. 606; King v. Gibbs, 26 Id. 502; Winter ......
  • 305 N.Y. 515, People v. Wirtschafter
    • United States
    • New York New York Court of Appeals
    • 14 Julio 1953
    ...N.Y. 393; People ex rel. Bernoff v. Kirby, 265 A.D. 961; People v. Gould, 169 Misc. 323; Winter v. Kinney, 1 N.Y. 365; Decker v. Judson, 16 N.Y. 439.) II. The District Attorney may not proceed against the surety five and one-half years after the original forfeiture. (People v. Bennett, 136 ......
  • 177 S.W. 929 (Ark. 1915), 17, Bowen v. Lovewell
    • United States
    • Arkansas Supreme Court of Arkansas
    • 31 Mayo 1915
    ...under which it was given and was not without consideration nor void. It was not extorted colore officii. 18 N.Y. 115; 71 Ala. 479; 16 N.Y. 439; 41 N.Y. 464; 37 Barb. (N. Y.) 179. No compulsion was used by the Governor. 10 Wall. (U.S.) 395, 406; 15 Peters, 290; 79 Ill. 564; 13 Iowa 322; 26 F......
  • 192 So. 224 (Fla. 1939), Malone v. Howell
    • United States
    • Florida Supreme Court of Florida
    • 17 Noviembre 1939
    ...an act by virtue of one's office ( Burrall v. Acker, 23 Wend. (N.Y.) 606, 35 Am.Dec. 582; Winter v. Kinney, 1 N.Y. 365; Decker v. Judson, 16 N.Y. 439, 442), and is distinguished from 'by virtue of office' implying lawful power. ( People ex rel. Kellogg v. Schuyler, 4 N.Y. 173).' Black's Law......
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63 cases
  • 84 N.Y. 222, Toles v. Adee
    • United States
    • New York New York Court of Appeals
    • 1 Marzo 1881
    ...95; 1 Bouv. Law Dict. 244; Wharton's Law Lex. 177; Tomlin's Law Dict.; Burrall v. Acker, Page 225 23 Wend. 606, 608; Decker v. Judson, 16 N.Y. 439, 442; Martin v. Campbell, 37 Barb. 179, 182; Shaw v. Tobias, 3 N.Y. 188, 192; Burrall v. Acker, 23 Wend. 606; King v. Gibbs, 26 Id. 502; Winter ......
  • 305 N.Y. 515, People v. Wirtschafter
    • United States
    • New York New York Court of Appeals
    • 14 Julio 1953
    ...N.Y. 393; People ex rel. Bernoff v. Kirby, 265 A.D. 961; People v. Gould, 169 Misc. 323; Winter v. Kinney, 1 N.Y. 365; Decker v. Judson, 16 N.Y. 439.) II. The District Attorney may not proceed against the surety five and one-half years after the original forfeiture. (People v. Bennett, 136 ......
  • 177 S.W. 929 (Ark. 1915), 17, Bowen v. Lovewell
    • United States
    • Arkansas Supreme Court of Arkansas
    • 31 Mayo 1915
    ...under which it was given and was not without consideration nor void. It was not extorted colore officii. 18 N.Y. 115; 71 Ala. 479; 16 N.Y. 439; 41 N.Y. 464; 37 Barb. (N. Y.) 179. No compulsion was used by the Governor. 10 Wall. (U.S.) 395, 406; 15 Peters, 290; 79 Ill. 564; 13 Iowa 322; 26 F......
  • 192 So. 224 (Fla. 1939), Malone v. Howell
    • United States
    • Florida Supreme Court of Florida
    • 17 Noviembre 1939
    ...an act by virtue of one's office ( Burrall v. Acker, 23 Wend. (N.Y.) 606, 35 Am.Dec. 582; Winter v. Kinney, 1 N.Y. 365; Decker v. Judson, 16 N.Y. 439, 442), and is distinguished from 'by virtue of office' implying lawful power. ( People ex rel. Kellogg v. Schuyler, 4 N.Y. 173).' Black's Law......
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