Elliot vs. Cronk's Aministrators, 13 Wend. 35

By the court, Sutherland, J. This, though in form an action of debt, is substantially an action for money had and received by the testator of the defendants, as sheriff of the county of Niagara. The provision of the revised statutes requiring “Every action against any public officer, &c. fororconcerning any act done by such officer, by virtue of his office,to be brought in the county where the fact complained of happened, and not elsewhere,” 2 R. S. 353, § 14, does not apply, I apprehend, to a case like this.

That provision applies primarily, undoubtedly, and I am inclined to think exclusively to those official affirmative acts of public officers, by which,in the service of process or otherwise, they may interfere with the property or rights of third persons, and thereby become liable to an action. This construction is strengthened by the fact that the provision is not confined to public officers, but is extended to all others, who, by their commandment, act in their aid of assistance; showing that affirmative acts were contemplated, and not mere omissions, or neglect of official duty.

What, in the language of the act, is the fact complained of case q jt jg jpg omjssion of the sheriff to pay over to the plaintiff the money collected on his execution. Where that fact happen? If it can be said to have happened at all, or at any particular place, it must have been in the county where it was the duty of the sheriff to have paid it. It was his duty to have paid it to the plaintiff, or his attorney, wherever he resided, or to have brought it into court, upon the return of the execution; he was bound to pay over the money, without any other demand or notice than that given by the execution.

The distinction between affirmative acts of public officers and the mere neglect or omission of an official duty is distinctly recognized in several provisions of our statutes, in relation to them. Thus, in the statute of limitations, 2 R.

S. 296, § 22, it is provided that all actions against sheriffs and coroners, upon any liability incurred by them, by the doing any actintheir official capacity, or by the omissionofany official duty, except for escape, shall be brought within three years after the cause of action shall have accrued—and in the act giving double costs in certain cases, where judgment is rendered for the defendant. 2 R. S. 617, § 24.

The first class of cases specified is, actions against public officers, &c. for, or concerning any act done by such officer, by virtue of his office, or for, or concerning the omission by such officer to do any act, which it was his official duty to perform. These provisions show the opinion of the legislature, that the mere neglect or omission of an official duty would not be embraced in the phraseology of

an act done by a public officer. Without however undertaking to decide that this statute is not applicable to any case where the action against the officer is founded upon anomission of an official duty,it appears very clear to me that it cannot apply to a case where the ordinary action for money had and received can be sustained, and will afford an adequate remedy. 6 Cowen, 465. 1 Wendell, 534. Where the action would be local jas against the sheriff, I am inclined to think it would also be so against his representatives, although they are not expressly named.

It is true, that one of the reasons, upon which the provision may have been founded, does not apply to the representatives of the offleer, to wit, that his personal presence, within the sphere of his jurisdiction, may be necessary to the public safety or convenience. This consideration, however, can apply but to a small portion of the officers embraced in the terms of the act. The act applies to all public officers, from the trustees and collector of a school district, up to the sheriff of a county.

The act was intended, undoubtedly, to promote the convenience of public officers, and to protect them against vexatious and harrassing prosecutions for1 acts done by them in the discharge of their official duties—to save them the inconvenience and expenses of attending With their witnesses at places remote from their respective residences. These considerations apply in principle with so much force to representatives of the officer as to the officer himselfl But it is contended, secondly, that this case falls Within the 38th

section of the act concerning “ the duties of executors and administrators in the payment of debts and legacies.” 2 R. S. 89. That

section provides that if a claim against the estate of any deceased person, be exhibited to the exectitoi or administrator, and be disputed or rejected by him, and the same shall not have been referred, the claimant shall, within six months after such dispute or rejection, if the claim be due, commence a suit for the recovery thereof, or be forever barred from maintaining any action thereon. This section, it will be perceived, applies only to cases in which the claim is disputed or refected by the executor. It is a highly penal provision, and ought to be strictly construed.

The evidence does not show with the clearness and certainty reejusite in such case, that the defendants disputed or rejected the plaintiff’s claim. Mr. Morris, who presented the claim to the defendant Johnson, on the behalf of the plaintiff, testified that Johnson said he did not know whether the demm-irt was just or not, that he had not investigated the affairs of the estate, that he would consult counsel and let the witness know the determination of the defendants, and that he never did subsequently make any communication to the witness upon the subject.

Even if Johnson had not undertaken to let the plaintiff's agent know his final determination, and had simply said he knew nothing about the justice of the demand, that he had not yet looked into the affairs of the estate, it would not have been a disputing of the account or a rejection of it, within the meaning of this act. The act should be such as fairly to apprise the claimant, that his -demand would be contested. 3.

What has already been said sufficiently disposes of the objection that this action is in the nature of an action for a tort, and therefore incapable of being kept alive or revived by a subsequent admission of liability by the defendants. It is not in the nature of a tort, but is much more in the nature of an action for money had and received. It expressly charges the receipt by the defendant’s testator of the plaintiff’s money and his neglect or refusal to pay it over, as the foundation of the action.

It was decided upon the demurrer in tiffs case, to the defendants’ first plea of the statute of limitations, that the action was one upon contract or a legal liability, and that the limitation of six years was therefore applicable to it, and not the limitation of three years, which applies to actions against sheriffs for any liability incurred by them, by the doing any act in their official capacity or by the omission of any official duty. 2 R. S. 295, § 18, 22. The evidence was abundantly sufficient to raise a new promise, and take the case out of the statute. 4.

The exemplification of the record was properly admitted in evidence. It was proved that Morris S. Miller, by whom it was signed, was first judge of the county of Oneida at the time ; the omission to add his official character to his signature did not vitiate the record. But probably the execution without any record would have been sufficient to have been proved in this case. It is not for the sheriff or his representatives, in a case like this, to put the plaintiff upon the proof of a judgment. He is estopped from denying it. Motion for new trial denied.