#### Avery & Lathrop *vs.*Slack.

ALBANY,

Oct. 1837.

*Town*and *county officers*are not liable *individually*for the costs of a judgment rendered against them in suits commenced by them, although their *indi, vidual names*appear on the record, provided it also appear *that they sued in their representative character*for the *benefit of their constituents,*and not for their own benefit.

This exemption applies as well to suits for *penalties*as other matters, where it is the *duly*of the officers to sue ; where the duty to bring the suit *for*penallies is not enjoined by statute, but the same is *voluntarily*commenced, *it seems*the exemption would not apply!

The remedy of the party entitled to the costs is by application to the supervisors of the county, to be levied as other contingent charges of the town or county.

Costs in suits by town and county officers. The plaintiffs brought a suit in a justice’s court against the defendant *51to recover the penalty prescribed by statute, for selling spirituous liquors without license. In the suit, they described themselves as “ Sidney Avery and Lewis Lathrop, overseers of the poor of the town of Sherburne.” In the justice’s court, they recovered judgment against the defendant, who sued out a *certiorari,*and the Chenango common pleas *reversed*the justice’s judgment, and on error to this court, the judgment of the C. P. was *affirmed.*The defendant thereupon perfected a judgment for costs, and sued out an execution against the plaintiffs as *individuals.*A motion was now made to set aside the execution.

S. *Stevens,*for the motion.

*J. Edwards,*contra.

*By the Court,*

Cowen, J.

The enquiry is, whether the judgment be within the statute, 2 R. S. 389, 390, § 111, 2d ed., forbidding executions against officers, on judgments for costs recovered against them in suits which they have brought in their official capacities.

The penalty in question could be sued for by the overseers only, 1 R. S. 680, $ 19, 2d ed., and another statute is peremptory that they shall sue for it. Id. 638, § 72. They must declare as overseers of the town where the offence was committed. Id. 680, § 19. This must appear as a part of their title, for they alone are legitimate informers. The penalty is not, as in many .other cases, given to a common informer. It strikes me, that in the very nature of things, they must prosecute officially, and must be so taken to have prosecuted ; and that the character in which they sue must necessarily be shown on the record. Then comes the statute, 2 R. S. 389, 390,^ 111, saying that when a judgment shall be recovered against them, no execution shall issue, except in one case : and that is, where the judgment is for the *costs of a suit*commenced in their *individual names.*If, in their official character, the party must collect his costs through the supervisors of the county, id. 389, § 106, provided the case be within the sections last cited ; whereas, if *52they sue in their *individual*names, they must pay, and look to the supervisors, on showing that they necessarily and in good faith brought their suit. Id. 390, § 111.

It is strenuously insisted that the overseers, having used their baptismal names in the process and record, must therefore be treated as coming in their *individual*character, within the last mentioned section ; that to secure the protection of the statute, turning their antagonist over to the supervisors, they should have dropt their own names entirely, and come by their title of office alone; and various parts of the statute and divers cases have been cited. The provisions of the statute, directly or remotely bearing on the question, are contained in article 4th. 2 R. S. 387 to 390, 2d ed. That statute was intended to remove the hardship of paying costs by officers representing the interests of counties and towns, &c. and *overseers of the poor*are, among others, expressly mentioned. The former law threw the whole burden .of the suit directly upon the nominal party, in the first instance, leaving him to obtain indemnity from his constituents in a very uncertain and troublesome mode at best." Although really representing the rights of their constituents, officers had not the privileges even of private trustees. In ninety-nine instances out of a hundred, they had no real interest, and the legislature were determined that they should no longer depend in any degree, on mere courtesy or popular feeling for reimbursement. 3 R. S. 757, note at bottom of page. Accordingly, when they come on to a record representing their constituents, the collections of damages and costs are to be made directly from the latter. It makes no difference how they are named on the record, if their true representative character appear there; it is only when they stop with their own names, that they are liable to execution. The opposite parly has then no means of enforcing his claim through the board of supervisors. Various cases of this kind may be supposed where a suit of that form might be brought. One is, where a contract is made to A. and B. simply though really concerning their representative interests. They may then sue <zs A. *and B.*and hold the fruits of the litigation as trus*53tees. So where money is received to their use as officers, they may perhaps like an executor, see *2*Williams’ Ex. 1149, &c. sue either in their private or representative character. So where they hold property as officers, which is trespassed upon or converted, &c. But the statute has in such cases been careful to keep them as far as may be to a true description; for if they unnecessarily elect to *sue*without showing their public capacity, they lose their privilege of exemption; otherwise where they are *sued,*for then it is not their fault. It is indeed true that they cannot acquire exemption, by naming themselves officially, where the right is clearly private. In such a case, the title will be taken as a mere matter of description within the cases cited by counsel. 9 Johns. R. 334. 8 Cowen, 31. They are still private persons to all intents and purposes : as if one should sue for his own debt calling himself executor of A. That would not change the character of the claim. Yet he may so describe himself; it is mere surplusage. *2*Williams’ Ex. 1150. *Hornsey v. Dimocke,*1 Vent. 119. Comyn’s Dig. pl. *2,*D. 1. The distinction is fully illustrated by the case of an executor. He alw'avs sues in his own name. When he stops with that, he is said to sue in his *individual*character; when he adds *executor,*&c. he is said to sue in his *representative*character, and various cases are put in the books wherein he may do either. *2*Williams’ Ex. 1149, &c. and the authorities there *cited.*The same form *mutatis mutandis*has long practically prevailed in suits by or against several kinds *of*municipal officers. The statute itself contemplates the use of the individual name, by providing, *§*104, [100,] that no suit by or against, &c. shall abate, &c. by their death or removal, &c.; but the *names*of the successors may be substituted on their application, or that of the adveise party. Here a successor may be dragged in with his *own name*and be subjected to costs, and yet, it is said, because his name happens to be used, he shall, if plaintiff, be put tp the peril of paying the costs out of his own pocket.

It is supposed that this is so at least in all suits by officers for penalties, as suggested by the revisers’ notes to § 106, 7, 8 ; *54^ at bottom. That would be true were they voluntarilv to sue for a penalty not collected by them as officers, although the enforcing of the penalty might be useful to their constituents. But surely it is not so where they are obliged to sue, and that too in their official capacity. Such a rule would contravene the express words of the statute. § 111, before cited ; and see 11 Wendell, 181 ; 14 id. 71; 7 id. 181; 3 id. 197.

It is said also that if execution may not go against these plaintiffs, there is then no remedy; that the § 106, 2 R. S. 389, 2d ed. giving recourse for representative demands to the board of supervisors, does not extend to costs, except those arising on account of a *previous liability*of the town or other constituent body. The words of this section are, that if judgment be rendered for any debt, damages or *costs*against certain town or county officers, among whom are the overseers of the poor, *on account of the liability of such town or county,*the demand shall be laid before the board of supervisors, and collected in the manner prescribed by that and the subsequent section. The argument, if allowed, would prove too'much ; it would go to all costs adjudged against the officers named, except where they are *defendants*on account of some demand *against*their constituents ; at least, every unsuccessful suit in their own favor would be comprehended, unless it could be traced to and connected with an *actual previous liability*to them. There would be no provision as to the costs of an unfounded suit prosecuted by them even in their plainest official character ; and the inference sought to be made, would therefore operate to repeal the subsequent section (111) as to judgments against them, in respect to which they would stand in most need of assistance, and whereon the statute says expressly, execution shall not issue, unless they shall have sued as private citizens. The prohibition is positive. If the statute, in taking away one remedy, has provided no other, the officers are not therefore to be subjected. In *The Superintendents of the Poor of Tompkins Co.*v. *Smith,*11 Wendell, 181, on judgment as in case of nonsuit against *55the plaintiffs, no one thought of denying that they were privileged within the statute.

But is the statute so narrow, as is supposed, in respect to the substituted remedy? Is not such a judgment as this a judgment *on account of the liability*of the constituent ? The town or county is the real party, and equitably *liable*on account of all damages and costs in their causes. The officers are but nominal parties. Suppose a judgment for costs against James Jackson ex dem. A. B., in the old action of ejectment; on acccount of whose liability is this? plainly, A. B.’s liability for costs. *The Overseers of the Poor of the town of Milan*v. *The Supervisors of Dutchess,*14 Wendell, 71, 76, is an authority for saying, what every body will readily admit, that the statute (there cited as sections 102, 103,) should - be liberally construed. The word *judgment*in the section 106 (there 102) was held to comprehend *an order of sessions*to pay costs. These judgments or other awards of costs are certainly not on account of any liability of the officers. If there be any liability in the case, it is on account of the constituent. It is like the case of a trustee suing for his *cestui que trust.*A claim for the costs of such a suit may truly be said to be on account of the liability of the latter, who may many times be proceeded against directly like the lessor in ejectment. Therefore, I think it will be found that the argument sought to be raised from the want of a substituted remedy, fails, both in premises and conclusion.

On the whole, I think the execution must be set aside, with costs.