PRATT, J. (dissenting.)

In the examination of this case it becomes necessary, in the first place, to ascertain the precise nature of the covenant into which the sureties of the sheriff have entered, in order that we may be the better prepared to examine the question whether their covenant has been broken. The condition as presented in the statute, which is precisely the same as that set out in the pleadings, is in these words: that the sheriff "shall well and faithfully in all things, perform and execute the office of sheriff of said county, during his continuance in said office, by virtue of the said election, without fraud, deceit or oppression." (1 R.S. 378.) The statute also provides that "whenever a sheriff shall have become liable for the escape of any prisoner, committed to his custody, or whenever he shall have been guilty of any default or misconduct in his office, the party injured may apply to the supreme court for leave to prosecute the official bond of such sheriff." (2 R.S. 476.)

It is clear to me that the sureties under this bond, guarantee the public against official delinquency on the part of the sheriff, and that the guaranty extends to that alone. That in no case except for an escape can they be made liable, unless it be proved that the sheriff has violated some duty resting upon him as a public officer; and in all cases except when the action has been brought for an escape, it is a perfect defence on their part if it appear that the sheriff exercised due diligence; that he was guilty of no want of fidelity to his trust. The case of an escape is an exception. It is made so by the statute, and therefore no degree of diligence will excuse them. But even in that case, the form of the action assumes that the sheriff has been negligent, and proof of the escape is made conclusive evidence of the fact. The bail for the limits which the sheriff is required to take is his protection, and he must look to that for his indemnity; but except this there is no case where any thing more is required of him than due care and fidelity. This is evident from the terms of the condition of the bond, and the provisions of the statute, which give a right of action for its violation. The sheriff "must well and faithfully perform and execute the office," and for any "default or misconduct in his office," the condition is violated. Now the language of the statute appears to me to be plain and easy of construction, and no notions of public policy can justify a departure from the plain and obvious meaning of the condition of the bond.

It is an elementary principle, that the undertaking on the part of sureties, is not to be extended by construction, one iota beyond its terms, but on the contrary, it is to be strictly construed in their favor. (18 John. 389; 10 id. 180.) The question therefore, in this case, is not whether the sheriff has not done some act colore officii for which he may be liable to an action, but the question for our consideration is whether the declaration shows any misconduct in his office; any want of fidelity to the trust reposed in him as sheriff; or any failure in his official duty as such, by which the plaintiff has suffered damage.

Now what duty has he violated? or what negligence or misconduct has he been guilty of? An attachment had been delivered to him, under which he proceeded to levy on some property, supposed by him to belong to the defendant in the execution. The relator interposed a claim of title; the sheriff summoned a jury to try the validity of such claim, and they found the property in the relator. A sufficient indemnity was then tendered to him by the plaintiff in the attachment, and the sheriff thereupon detained the property. In all this the sheriff followed the express directions of the statute. Had he deviated from these directions, he would clearly have departed from his duty, and made himself and sureties liable to an action. (2 R.S. 4, §§ 10, 11; 8 John. 185; 1 Hall, 595; 8 Cowen, 67.) How then, it may well be asked, can a breach of duty be predicated upon an act by the sheriff; which the statute requires him to perform, and which, if he should neglect to perform, would itself constitute a breach of duty? Are the sheriff and his sureties placed by the law in any such embarrassing dilemma? Does the law tolerate any such legal absurdity, as that an act is at the same time both a performance and a violation of official duty; a performance and a breach of the conditions of a bond? And yet, if this declaration can be sustained upon this point, it must be upon this hypothesis, however absurd it may be.

The question may be asked, how then was the sheriff made liable at all? How could an action of trespass be sustained against him for taking property which a due discharge of his official duty required him to take? The answer is, he was made liable not upon the assumption that he has violated his duty as sheriff, but by utterly repudiating his official character, and bringing an action against him as a naked trespasser. Had an action been brought against the sheriff for official misconduct, or neglect of official duty, he could have defended successfully by showing the facts set out in this declaration. But the claimant made no complaint of that character, but reposing upon the strength of his title, makes that the issue, and thus the official character of the sheriff in the commission of the act becomes entirely immaterial. Hence the question which was discussed at some length upon the argument, whether the sheriff, in taking the property, acted officially or not, becomes immaterial. The question is not in what character the sheriff intended to act, but in what character is he made liable. If he is not made liable for some misconduct in his office, for some want of fidelity to his trust, it is not within the undertaking of his sureties. Thus I can not perceive any difference between a case of this kind, and one where the officer should take property without any process. So far as his liability is concerned, the process neither aids nor injures him. The question tried does not depend upon his good or ill conduct, whether the circumstances raised a strong presumption that the property belonged to the defendant in the execution or not.

Suppose a case where the property was found in possession of the debtor, and no notice given to the sheriff that any one other than the debtor had any claim to it. Under such circumstances, it would clearly be the duty of the sheriff to seize it, and yet, that would afford no justification to him in an action of trespass, if it should turn out that the property in fact belonged to a third person. His conduct might be the most discreet imaginable; he might after the most careful inquiry, and upon the most ample evidence, be entirely satisfied that the property belonged to the defendant in the execution; and yet, in an action of trespass upon the question of title, it would be of no avail. And his only protection against a suit where the question of title is in issue is his bond of indemnity. His good or ill conduct as an officer is not in issue, and therefore not material. But if the action should be brought against the sheriff for misconduct in his office, all these considerations would become important and material. An issue of an entirely different character would be presented for trial; one that would involve the official conduct of the officer: his care, diligence and general fidelity to his trust in the particular case, and one which he could defend successfully by showing that he had not been wanting in any of these respects. Now, as I have already said, the question is: in what character is the sheriff made liable, and not in what character did he design to act in taking the property? The authorities recognize a principle or rule by which the acts of the sheriff, for which his sureties may be held liable, can be distinguished from those acts for which they will not be held liable. The former are termed acts done virtute officii, and the latter colore officii. The distinction is this: Acts done virtute officii are where they are within the authority of the officer, but in doing it he exercises that authority improperly, or abuses the confidence which the law reposes in him; whilst acts done colore officii, are where they are of such a nature, that his office gives him no authority to do them. ( Seely v. Birdsall, 15 John. 267; Alcock v. Andrews, 2 Esp. 540. n.) This distinction is as old as the common law, and has been acted upon and recognized in numerous cases, some of which I shall hereafter advert to. It is true, that in some cases statutes made for the protection of public officers, have been extended by construction to cases avowedly not within the terms of such statutes; but they can scarcely afford any authority for departing from a strict construction of the undertaking of sureties, for the purpose of extending their liability. It is not necessary in this case, to insist that the distinction adverted to is universally applicable to the liability of sureties, upon undertakings similar to the one in this case; yet, as there must be some limit to their liability, some line of demarcation, designating those acts of the sheriff to which their liability extends, and beyond which it does not extend, it will be found that this distinction is based upon correct legal principles, and is supported by an abundance of authority. In the one case, the inquiry relates entirely to the official conduct of the officer, whether he has neglected any duty which the law imposed upon him, or whether in doing any act which the law requires him to do, he has acted faithfully and honestly; whilst in the other case, his care, or diligence, or faithfulness, is not a subject of inquiry at all; the inquiry being limited exclusively to his power or authority to do the act.

But it has been attempted in this case to bring the act within that class to which I have conceded the liability of sureties to extend. It is insisted that the duty rested upon the sheriff in this case to seize the property of the defendant in the execution or to return the writ. But the difficulty in this argument is that the sheriff was not made liable for not seizing the goods of Fay, but for seizing the goods of the relator. The relator has no right of action against the sheriff or any body else for this neglect. The plaintiff in the attachment is the only man who has any interest in that matter. The most subtle ingenuity will scarcely be able to explain how a trespass upon the property of the relator can constitute a neglect to seize the goods of the defendant in the attachment, so as to give the former a right of action for such neglect. But it is insisted that public policy requires that the sureties should be made liable; that the rights of third persons would be otherwise unsafe, because they could not successfully resist the sheriff, he having the power of the county at his command. Arguments from mere inconvenience are never very satisfactory or controlling, and ought never to be allowed for the purpose of extending the liability of sureties. But I can not appreciate the supposed difficulty. It is quite clear that if the sheriff should attempt to seize the property of the wrong man, the latter would have a right to resist force with force, and having the right with him there can be no reason why he should not be successful. (8 Pick. 133.) The claimant would thereby have the advantage, as he could protect those who might assist him, whereas those who might assist the sheriff would be trespassers.

Again; it is insisted that the same rule should be applied to the sureties when the sheriff commits a trespass as is applied to the sheriff when the trespass is committed by one of his deputies. No one will deny the general doctrine that a sheriff is liable for the acts of his deputies done colore officii. He and his deputies are considered in law as one person. But at the same time, this liability is rather arbitrary than necessarily growing out of the legal relation that exists between them as principal and agent, or master and servant. It is entirely inconsistent with the general principles, as applied by the courts in this country, to the relation which exists between the superior officers of the government and those inferior officers or deputies which the law requires them to appoint. As a general rule, the doctrine of respondeat superior does not apply to them.

The liability of the sheriff for the acts of the deputy is therefore clearly an exception to the general rule. This exception may have originated from the fact that anciently they were not considered public officers, but the servants or bailiffs of the sheriff, and it was customary for the sheriff to issue a precept to them in each particular case; or it may have originated in some reasons of public policy growing out of the general character of the deputies, as suggested by Sergeant Davy in Sanderson v. Sheriffs of London and Middlesex, to wit: that they were the most abandoned and wicked set of men. At all events, the exception is not based upon any legal principle which necessarily requires its extension to other cases, and especially when the effect of such extension would be to increase the liability of sureties. Their liability rests in contract, and the obligation thereby created is not to be extended beyond its legitimate scope and meaning. We are not at liberty to speculate upon reasons of policy when the rights of parties are fixed by contract.

But as a question of policy, the inquiry may well be made, why should the sureties of the sheriff be made liable in cases of this kind? Through efforts to defraud creditors and sometimes when no such intention exists, difficult and perplexing questions of title or priority of lien often spring up. The sheriff is generally a mere medium through whom the judgment creditor upon the one side and the claimant on the other litigate these questions. There is no motive for either the sheriff or the party to interfere with the claims of others, except when they honestly desire to litigate the question of title or priority of claim. On what principle then, is a party in the position of the relator in this case entitled to any greater security than other litigants? Why should the creditor not be allowed to litigate with such claimant without involving the interests or liability of the sheriff and sureties? In cases of this kind, the property is almost uniformly taken by the direction of the plaintiff in the execution. The claimant thus has the responsibility of such plaintiff in addition to that of the sheriff. As a general rule he is better protected in securing the fruits of the litigation than ordinary litigants. I must confess, therefore, that I am unable to perceive, had we power to extend the liability of the sureties, why upon principles of public policy it should be done. Whilst, according to the terms of their covenant, the sureties should be held to guaranty to the public the official fidelity of the sheriff, there is no good reason why they should be held liable for the consequences of a litigation which in no sense involves his official conduct.

I have thus far examined the question involved in this case upon principle. Upon authority the positions which I have assumed are supported by a decided preponderance, especially in this state. Indeed, in this state I have not been able to find even a dictum to the contrary. The cases of Ex parte Reed, (4 Hill, 572,) and Ex parte Martin referred to in that case, are directly in point. The precise question was passed upon in both cases; and although they were decided upon motion at special term, yet the former at least was decided by Judge Cowen, after consultation with the other judges of the court. The case of the People v. Spraker and others, (18 John. 390,) is also in point that the undertaking of the sureties is not to be extended beyond its terms. That decision was under the statute of 1813, which required judgment to be recovered against the sheriff for default or misconduct in his office before the sureties could be prosecuted. The sheriff had been guilty of a neglect to return an execution for which he had been attached, and discharged by giving bail to appear upon the return day of the attachment. Failing to appear, the bond had been prosecuted and judgment recovered upon it. The court held that such recovery was not sufficient. That it must be directly for such default or misconduct in office. Yet, he was attached as sheriff and was bound to appear and answer as sheriff; which failing to do, judgment had been recovered against him. But the court held that the undertaking of the sureties must be strictly construed, and should not be extended beyond what was clearly expressed in its terms.

In Morris v. Van Voast, (19 Wend. 283,) the court give a construction to the language of a statute similar in its terms to that of the sheriff's bond. The action was trespass against a sheriff. The defendant pleaded that he took the property by virtue of a writ of replevin, setting up the short statute of limitations. The court, by Nelson, Ch. J. held that the statute only extended to acts done virtute officii; that if the sheriff was a trespasser the act must be deemed done colore officii, and that the statute was therefore no bar. Seely v. Birdsall, (15 John. 267,) was an action for a false return, which was held to be local because it was an act done virtute officii. Spencer, Ch. J. said, "the true distinction was between an act done colore officii and virtute officii. In the former case, the sheriff is not protected by the statute when the act is of such a nature that his office gives him no authority to do the act. But when in doing the act within the limits of his authority, he exercises that authority improperly, or abuses the confidence which the law reposes in him, to such cases the statute extends." It will be perceived that this was for precisely the same act on the part of the sheriff as that in Ex parte Chester, which is cited as opposed to the case of Ex parte Reed. As to that case it might, perhaps, be a sufficient answer to it, that it was decided by the same conrt who decided the case of Ex parte Reed, and that they did not seem to be aware that they were overruling a well considered decision so recently made by themselves. But the two cases are not analogous. There is clearly a duty resting upon the sheriff, not only to return the writ but to return it truly. If he should fail to do so, it would most clearly be a violation of official duty. And again, the form of the action is for official neglect. The gist of the action is not so much that the sheriff has entered a falsehood upon the writ, as that he has neglected to seize and sell property which the defendant owned, and thus to make the amount of the execution according to its command. It charges the officer, in so many words, with official neglect, against which no one will deny that his sureties have guaranteed the public. This will appear more clearly if we advert to the defences which the sheriff is entitled to make. He is not confined in his defence to proving the truth of his return, but he may show that he exercised due diligence in endeavoring to find property; that upon a claim being made to property found in the debtor's possession, he called a jury, who found in favor of the validity of such claim; or that after diligent search he was unable to find any property of the debtor. In fine, he could interpose any facts as a defence which would show that he had not been remiss in his duties as a faithful and efficient public officer. The whole question therefore, it will be seen, is one relating to the official conduct of the sheriff — a question as different from the one presented in this case as light is from darkness. The case therefore is clearly not in point.

In the case of Commonwealth v. Kennard, (8 Pick. 133,) it was held that the owner of property might resist the officer who should attempt to seize it by virtue of an execution against another. Ch. J. Parker said, "We cannot distinguish between an officer who assumes to act under a void precept and a stranger who should do the same act without precept. An officer without precept is no officer in the particular case in which he so undertakes to act." So in Alcock v. Andrews, (2 Esp. 540,) which was an action against a constable for an assault and battery, who set up the six months' statute of limitations under the statute 24 Geo. 2, ch. 44. Lord Kenyon overruled the objection upon the distinction that the defendant acted colore officii, and not virtute officii — "that it had often been held that a constable acting colore officii was not protected by the statute. That when the act is of such a nature that the office gives no authority to do the act, in doing it he is not to be considered as an officer; but where a man doing an act within the limits of his official authority, exercises that authority improperly or abuses the discretion placed in him, to such cases the statute extends. The distinction is between the extent and the abuse of the authority."

Now these are plain, obvious distinctions, and clearly applicable to this case. I admit that they have not in all cases been adhered to; but when they have been disregarded, it has generally been for the protection of public officers, and not for the purpose of extending their own liability or that of their sureties. In two or three states, sureties have indeed been held liable for the acts of their principals done colore officii; but these cases can not be supported upon legal principles. In Carmack v. Commonwealth, (5 Binn. 184,) the sureties of the sheriff were held liable for taking the goods of the plaintiff upon an execution against another person. The principal ground of the decision seems to have been that it cost persons so much to obtain the office that it generally made them insolvent, so that unless their sureties be made liable for their trespasses the public would not be sufficiently protected. In the same state it has recently been held, in an action against a sheriff and his sureties, where the sheriff had returned a levy upon property, that it constitutes no defence that the property did not belong to the defendant in the execution, but belonged to a third party. ( Miller v. Commonwealth, (5 Barr, 294.) This latter decision is also placed upon reasons of policy growing out of the danger of collusion between officers and the defendants to defraud honest creditors. We are not acquainted with the materials of which sheriffs are made in that state; but if both these decisions are good law, they must be bold men who would be willing to become their sureties. A sheriff who should unwittingly levy upon property which did not belong to the defendant, would have no method, upon discovering his mistake, of either saving himself or sureties. If he should sell the property and pay over the money to the plaintiff, his sureties would be liable, within the case of Carmack v. Commonwealth, to the owner; if he should return the property, then within the case of Miller v. Commonwealth, they would be liable to the plaintiff in the execution. The sureties are thus placed in a very embarrassing position; but it is a very natural consequence of departing from legal principles in deciding the rights of men, and endeavoring to adapt the law to some fancied notions of convenience.

In Maine, decisions to the same effect have been made, (3 Greenl. 418; 11 Maine, 241;) but they were based upon what was supposed to be decided in Massachusetts, in Skinner v. Phillips, (4 Mass. 73,) and also upon the supposed analogy to the liability of the sheriff for the acts of his deputy. I do not find any such principle decided in Skinner v. Phillips. The statute of Massachusetts requires judgment to be recovered against the sheriff; and in that case judgment had been so recovered against him, for misfeasance and malfeasance in his office, without specifying particulars. The court held that the sureties were liable for the misfeasance and malfeasance of the sheriff in his office. Now this is a truism that no one will doubt, but it entirely fails to show what act will constitute such misfeasance or malfeasance in office. Besides, the bonds of sheriffs, both in Maine and Massachusetts, provide that the sheriff shall answer for the misfeasance and malfeasance of deputies. As the undertaking is general for the acts of deputies, without confining it to their official acts, the bond might well admit of a more enlarged construction in regard to the liability of the sureties than a bond like the one in suit. For these reasons I do not deem those decisions as entitled to a great deal of weight, when they come in conflict with the decisions of our courts. ( See also 2 Shep. 112; 7 B. Monroe, 250; 2 Alab. 728; 11 S. M. 354, 13 Ala. 526; 10 John. 271; 2 Wend. 611; 3 Burr. 1767.)

The next question is whether the officer was guilty of any official delinquency in not paying up the judgment. If in taking the property he was not guilty of official delinquency, it is difficult to perceive how he could be in not paying the judgment. After judgment recovered he was legally bound as any other man would be to pay it. But the recovery would impose no official duty upon him. As an officer he was bound just as strongly before as after judgment. And yet if he was bound to pay, the obligation accrued the moment he took the property. The direction of the statute to the sheriff to detain it, in cases where a sufficient indemnity is given, would thus be rendered utterly nugatory. The statute imposes no obligation upon the sheriff, as such, to pay; but it does impose this obligation upon the trustees. They are required, in the case of a claim to the property and a bond of indemnity executed by the creditor, to retain an amount sufficient to indemnify him against such claim until a final determination shall be had respecting such liability. (2 R.S. 46, §§ 30, 31.) It is quite probable that if the sheriff should refuse to prosecute the bond, or if he should as a public officer throw any obstacle in the way of the claimant, he might be made liable. But official delinquency can not be predicated upon the neglect to pay a judgment recovered against him, not for neglect of official duty, but for a naked trespass. The judgment of the supreme court should therefore be affirmed.

RUGGLES, J. and HURLBUT, J. concurred.

Judgment reversed.