'1'
.BERNARDt1;BoWE.
:: ",;:
Oourt. S. D. New: York. December 80,1889;)
Smnuus-WJtQNGIIPL: DELIVERY OIl A-rrAOHED PROPERTy-LIMITA'l'ION OJ' ACTIONS. Under Code Civil ProO. N. Y. § 885. which provides actions must be brought
within on. year after the cause of action accrues against a sherifi' or coroner. UpOll: aUability incurred by him by doing an act in his official capacity. or py the omission of an except the non-payment of money collected l1pon an execu. tion, an actl:Pttligainsta sherifi' for wrongfully delivering plaintiff'S property to a. third person, after the attachment suit in which the sherift had seized the property had beeD dismissed, must be brought within ODe year· · t.:' ',''., , "
At Law. On demurrer. Edwar.d g, ferkina,.for ·. Ch:arle8 F. McLean, for defendant. , ' r !,. .>.
'.'
·
W ALLA<:E,. J;., The complaint in this action avers that the defendant was sheriff .ofthe oity and county of New York from ,the 1st of January, 1880, to the 31st of December, 1882; ,that in 1882, in an action brought by the king of the Belgians against the plaintiff, a warrant ofattachment was issued to the defendant, as sheriff, against the property of the plain. tiff, and hy virtue thereof the defendant seized certain property belong. ing to the plaintiff; that in '1883 the action was discontinued, and the warrant of attachment annulled;' and that thereafter the defendant, with. out right, delivered the property toone Bourgeois, who had no right or authority from the plaintiff to receive the same. By reason of the prem..: ises the plaintiff alleges he sustained damages in the sum of 8600,000. The defendant, among other defenses, alleges that the cause of action stated in the complaint did not accrue within one year before the com· mencernent ofthe action.. This defense is founded upon. the provisions of section 885· of the Code of Civil Procedure of this state, which pro· videa that an action must be.commenced within one year after the cause of action has.accrued "against aaheriff or coroner, upon a liability in· Cllrred by him by doing an act in his official capacity, or by the ornie. sion of an official duty, except the non-payment of money collected upon an execution." ("To this defense the plaintiff has demurred. . Unless the:acts set forth in the complaint were done by the defendant colore ojJWii"allthe averments respecting his official oharacter, and the particular circumstances under. which he took the plaintiff's property and parted with it, are of no significance. and the simple averment of a wrongfuHakingand convei'Sion:ofthe property by the defendant would have sufficed. He is charged with delivering property 'Of the plaintiff, which he rightfully seized as sheriff by the warrant of attachment, to a third person, who had no authority to receive it. His duty was, when the suit was discontinued and the warrant anilUlled, to deliver the prop. erty to the plaintiff, or "to the person entitled thereto, upon reasonable demand, and upon payment of all costs, charges," etc., and "file the warrant, with a return of his proceedings thereon, with the clerk" of the
BERNARD fl. BOWB.
31
proper court. Code Civil Pioc. §§694, 709,712.. This was his duty, notwith$tanding his term of office had expired before the warrant was aonulle.d. ld. § 186. If it is true, as the complaint implies, that he assumed to be acting in execution of his authority in delivering the property to Bourgeois, he is clearly entitled to the protection of the statute, because it is intended to apply as a defense to the acts of a sheriff done colore officii as well as virtute officii. The section in question of the Code is a re-enactment of the provisions of pre-existing statutes which were ,passed in order to relieve the sureties of sheriffs 00 their official bonds, by requiring suits to be speedily brought where they stood responsible forBuch officers. In 1850 the state court of last resort decided that such sureties were liable to 0Ile whose property had seized QI;l executiQn against another person by a sheriff, and held. although the sheriff could not justify under his process, his act was an official act, and consequently a default or misconduct in his office, because his unauthorized act was done in assuming to discharge a duty pertaining to his office. Before the present Code was enacted the court of appeals had decided that the statute then existing, which was the same in phraseology as the section in question, except that the time was three years instead of one, protected the sheriff in both classes of acts. Cumming v. BrfYlJJ'n' 4:3:N., Y. 514. \Tha,t was a case in which a sheriff was sued for taking property of the plaintiff upon an execution against a different person, and the court held that the act, although a trespass, was official, . and the bar of the statute applied to it. The codifiers in repeating the language of pre-existing statutes are presumed to have used it according to its received judicial construction by, the courts of the If itsho.uld be conceded that the facts alleged in the com,plaint do not necessarUy imply that the defendant, when he delivered the property to Bourgeois, assumed to be acting in an official capacity, there is no allegation that he acted mala fides, and, in the absence of facts in the complaint to show that he was guilty of an intentional wrong, it is to be prethat .what be did in making disposition of the property in his official custody was an official act. The proper disposition of the property after the warrant was annulled was as much a part of his oflicial duty as was its safe-keeping after he had taken possession of it under the :WArrant, or.as the payment over of moneys in his hands collected upon a.J;1' ext:!cution would have been. .The of money collected uPon .execution by the sheriff is treated by the sectlon. as an official act, or the. omission of an official duty; otherwise the. exception would be alld the 'non-delivmeaningless which the Election expressly eryof property to the person entitled to it is a strictly act, and equally.the omission of an offiGial duty, within the. meaning of the section.. Thea1,lthorities are oyerwhelming to the effect that whatever is an attempt to perform official duty in the execution of proceSi;l is an 6fliciall.Wt. Lamm,o:n v. Feusier.1l1 U. S.17, 4 Sup. Ct. Rep.. cases th,e!e ctted; in addition to which see v. Gee,. 2 Starkie, H8; Weller v. Toke, 9 East, 364; Morgan v. Palmer, 2 Barn. & C. 729. The facts alleged in the complaint are certaiqly CQIlaisteQt with the theory
82
REPORTER, vol. 41.
that wlien he delivered thepi'operty to Bourgeois the defendant acted under a mistake, supposing him to be the representative of the plaintiff. If this is the case to be tried, the answer sets up a good defense. The demurrer is overrttled.
GROMMES d al.
t7.
SEEBERGER, Collector.1
(Cireuit Court, N. D. DHnoiB. July 18,1889.) CuSTOMS DUTIES-CLASSIFIOATION-PROPRIETARY MEDIOINES.
Arp's Pepsin Bitters, which are prepared under the direction of a sworn chemist, and protected by a trade·mark".and are used, not as a beverage, but as a tonic, mixed with water or wine, in <iaseo'f'certain diseases, their chief medical ingredient being- pepsin prepared chemically frOm the stomachs of animals, are dutiable as "proprietary,preparations, " under clause 99 of Hey!'s Arrangement of the Customs Act of ,March 8,1883, and not as "bitters oontaining spirits. "'under clause 818 of said Arrangement. ' .
At Law. Shuman
for defendant.
&- Defrees. for plaintiffs. W. G. Ewing, U. S. Dist; Atty., and G. H. Har'f'i8, Asst. U. S. Atty.,
"
BLODGETT, J. Plaintiffs a quantity of bitters, known to the trade as" Arp's Pepsin Bitters,"upon which the collector assessed a duty at the rate of two dollars per pi.'dof gallon, under clause 313 of Heyl's Arrangement of the Customs Act df March 3, 1883, which reads: "Cordials, liquors, arrack, absinthe, kirschwasser, ratafia, and other spirituous beverages or bitters coritaining spirits, and 'not specially enumerated or prOVided for in this act. $2 per proof gallon." Plaintiffs paid the duty upon these goods under protest, and appealed to the secretary of the treasury, by whom 'the action of the collector was affirmed, and in apt time brought this suit to recover the excess of duty imposed. Plaintiffs contend by their protest that the goods in question are a "proprietary article," within the Illeariingof clause 99 of Heyl's Arrangement bf the Customs Law of March 3, 1883, which reads: "Proprietary preparations, to-wit, all cosmetics, pills, powders. troches, or lozenges, sirups; 'corrlials, bitters, anodynes, tonics, plasters, liniments, salves, ointments, pastes,drops, waters, essences, spirits, oils, or preparations, or compositions recommended to the public as proprietary articles, or prepared according to some private formula, as remedies or specifics for any disease or diseases or aft'eetions whatever, affecting the human or animal body," etc. The proof shows that the goods in question are prepared under the direction and supervision of a swor.n chemist; that they are protected by' a trade-mark; that they are recommended for use as a tonic; that their .chief medical ingredient is pepsin. prepared chemically from the stomlReported by Louis Boisot; Jr., of the Chicago bar.
