Paige v. Carroll

Sharpstein, J.: This action was brought against a Sheriff and his sureties upon his official bond to recover damages which the plaintiff alleges that he has sustained by reason of the seizure and sale of certain personal property by said Sheriff under a writ of attachment against the property of one Anderson. The allegation is, that the property was taken and carried away on the eighth day of August, 1876. This action was commenced on the twentieth day of January, 1880, after a lapse of more than three years after the alleged cause of action arose. The complaint was demurred to, and the demurrer sustained on the ground that the action was barred by Sections 338 and 339 of the Code of Civil Procedure. This appeal is from the judg[214]ment entered in favor of the defendants, in default of the plaintiff’s amending his complaint.

The period prescribed for the commencement of “an action upon a liability created by statute” or “for taking, detaining or injuring any goods or chattels” is three years; and for the commencement of an action against a Sheriff* * * “upon a liability incurred by the doing of an act in his official capacity, and in virtue -of his office,” is two years. (C. C. P. § 338,; Id. §339);

It is conceded that a simple action against the Sheriff otherwise than upon his official bond, for doing what he is alleged to have done in this case would, have to be commenced within three years after the right of action accrued in order to avoid the bar of the statute. But it is claimed that neither of the sections relied upon applies to this case. And it must be admitted that neither of them does in terms limit the time within which an action may be brought upon a bond of this description. Still it is sufficiently manifest that it was the intention of the Legislature to limit the time within which an action could be commenced “upon a liability incurred by the doing of an act in his official capacity.” And the liability relied upon in this case was precisely of that character. This case, if not within the letter, appears to be within the reason of the rule which requires that actions against Sheriffs shall be commenced within one of the periods prescribed by the sections of the Code above cited. And the provisions of the Code on this subject “ are to be liberally construed, with a view to effect its objects and to .promote justice.”

Before entering upon the discharge of the duties of his office every Sheriff is required to give a bond similar to that given in this case, and if the position of the appellant’s counsel be correct, no action against him, for doing what he is alleged to have done in this case, would be barred until after the expiration of the period within which actions may be commenced upon bonds of that character.