#### THE BOARD OF SUPERVISORS OF THE COUNTY OF KINGS, Respondent, *v.*ANTHONY WALTER, Appellant.

Sheriff— *statute of*limitations— *section*2, *cha/pter*733 *of*1871.

The statute of limitations (one year) for acts done hy a sheriff in his official capacity, and in virtue of his office, or by the omission of an official duty, is not applicable to a cause of action against the sheriff for procuring payment, by means of a sworn bill and false vouchers, for board of fictitious persons who were never confined in the county jail.

Appeal from an order sustaining a demurrer to the defendant’s answer, which alleged that the cause of action did not accrue within one year before the commencement of the action.

The action was brought to recover $24,122.25, alleged to have been obtained from the county by the sheriff thereof, by means of fraudulent accounts and vouchers for the board and confinement of fictitious persons in the county jail.

*N. H.*Clement, for the appellant.

Section 2, chapter 733, Laws of 1871, applies when recourse can be had to the official bond. *(Cumming*v. Brown, 43 N. Y., 514.) Its object was to relieve the sheriff’s sureties. *(Morris*v. *Van Voast,*19 Wend., 283; see particularly the revisers’ notes referred to in the above case; *Dennison*v. Plumb, 18 Barb., 99.) The question then arises on this demurrer: In case the plaintiff recovers judgment against Walter, could recourse be had to the official bond *%*The form of the bond given by sheriffs is set forth in 2 Revised Statutes, 476, section 1. The bond is given against fraud, deceit or oppression, in those words. A sheriff’s bond has been held liable for moneys collected for militia fines, and not paid over; for. embezzlement of county moneys. *(People*v. Brush, 6 Wend., 454.) The moneys claimed are the excess of bills alleged to be fraudulent. The portion of bills paid which are admitted to be correct were paid to the sheriff *virtute officii.*They are paid to the sheriff as such by virtue of the statute, and not to him individually. “Acts done *virtute officii*are where they are within the authority of the officer, but in doing which he exercises that authority improperly or abuses the confi*88dence which the law reposes in him ; while acts done *colore ,officii*are where they are of such a nature that his office gives him no authority to do them.” *(The People*v. *Schuyler,*4 Comst., 187; *Seely*v. *Birdsall,*15 Johns., 267.) The case of *Elliott*v. *Cronk’s Administrators*(13 Wend., 35), has no application to this suit. That decision was on the express ground that the sheriff had done no affirmative act. Another test: Will the defendant, if successful in this case, be entitled to double costs ? (2 R. S., 617, § 24.) If these acts charged are acts *virtute officii,*he would be. (Burhans’ *Executors*v. *Blanchard,*1 Denio, 626.) A justice, sued for malicious prosecution: held, that he was sued for an act done by virtue of his office. *(Row*v. *Sherwood,*6 Johns., 107.) If a malicious act is committed *vvrtwte officiÁ,*is not a fraudulent one also committed by virtue of office *%*

*Winchester Britton,*for the respondent.

This statute was passed with a view of fixing a limit of time to the liability of sheriffs’ official bail, and has been construed to include acts of the sheriff for which such bail are liable, and such acts only. *(Dennison*v. *Plumb,*18 Barb., 89-98; *Cumming*v. *Brown,*43 N. Y., 514; *Parton*v. *Williams,*3 B. *&*A., 330; *Morris*v. *Van Voast,*19 Wend., 283.) The bail are liable for acts *virtute officii,*not *colore officii.*(18 Barb., 89, *ante*; *Alcock*v. *Andrews,*2 Espinasse, 542, note; *Golden*v. *Elphinck,*4 Exch., 445; 3 Fisher’s Digest, 5494.) Where levy is made without process, it is *colore officii,*not *virtute officii,*which former is defined to be when his office gives him no authority to do an act. *(People*v. *Schuyler,*4 Comst., 180 ; *Seeley*v. *Birdsall,*15 Johns., 267.) *Vvrtwte officii*is defined to be when the officer is acting under color of his office, intending in good faith to perform a proper official act. *(Straight*v. *Gee,*2 Starkie, 445.) The words of the bond cannot be extended beyond nonfeasance or misfeasance in respect to acts which by law he is required to perform as sheriff. *(Ex parte Reed,*4 Hill, 573 ; approved, 4 Comst., 179.) Where the duty exists, and it is neglected or performed in an improper manner, the sureties are liable, otherwise not. (4 Comst., 180; 1 R. S., 876, § 162; 1 Crocker on Sheriffs, § 884; *Governor*v. *Hancock,*2 Ala., 728, cited 4 Comst, 177.) In short, the statute under discussion applies to such acts of the sheriff as are *89performed in the discharge of his duty as a public officer, or to the omission of some act required of him by his duty as such officer.

Barnard, P. J.:

I do not think that the liability sought to be enforced in this action, is the result of an act done by the defendant as sheriff in his official capacity, and by virtue of his office. The defendant was sheriff, and, as such, had the official duty to board the prisoners in the jail; but the allegation is,- that the defendant, by means of a sworn bill and false vouchers, procured payment for boarding fictitious prisoners, “ persons who were never committed to, received, or confined in, boarded at, or discharged from said jail.” It is a fraud of the gravest description, and one which procured a large sum of money, $24,122.25, from the public treasury. The short statute of limitation (one year) for acts honestly done by sheriffs by virtue of their office, could not have been intended to cover up such a case. Order affirmed, with costs.

Tappen, J.

(dissenting):

The defendant, while sheriff of Kings county, having the custody and being the keeper of the common jail, presented from time to time his accounts for the board of persons confined therein, including his fees for receiving and discharging such persons, to the supervisors, who audited such accounts; and the defendant was paid the amounts thereof. It is now claimed by the plaintiffs, that such accounts were fraudulently overstated by the defendant, and that a large sum was charged for persons who were never so committed, boarded or discharged, and this action is brought to recover back the amount of such overcharges, on the ground that the defendant’s accounts were fraudulent.

The defendant’s answer admits the auditing of his accounts, and that he was paid the amounts thereof, and denies the other allegations. He further alleged that the catise of action did not accrue within one year before the commencement of the action. To this latter defense the plaintiffs demurred and had judgment in their favor at the Special Term, and the defendant brings this appeal therefrom.

By chapter 733 of the Laws of 1871, section 2, it is provided that “ no action shall be brought against any sheriff upon a lia*90bility incurred by the doing of an act in his official capacity and in virtue of his office * * * unless the same be commenced within one year from the time when the cause of action shall have accrued.” It will be observed that this was an official account of the defendant, as sheriff, against the county. The duties of sheriff are largely performed by deputy, and by the assistance of others, and this is particularly the case in a large and populous county. His liability for any fraudulent charges against the county, would be good ground of action against him during any period of time not barred by statute. But the intent and purpose of the statute limiting the time for bringing suit for one year, were to enable both the sheriff and the sureties on his official bond to determine their liabilities within that time.*

This action was brought after the time so limited. It being the sheriff’s duty to receive and discharge from, and to maintain at the jail all persons committed thereto, the accounts which are now questioned were for services arising out of his official duty.

I am of opinion that the defendant, in presenting his accounts and vouchers to the plaintiffs, and in having them audited, did so as sheriff, and not as a private individual or under color of office, and hence that the statutory limitation applies to this action. In *Mow*v. *Sherwood,*
      *†*
      **a justice of the peace being sued for malicious prosecution, it was held that he was sued for an act done by virtue of his office.

To prevent the statutory bar from being held applicable, it will be necessary also to hold that the defendant’s accounts, so far as they are correct, were presented by virtue of his office, and so far as they were excessive, that they were not by virtue of his office, but under color of office. I do not think the distinction can be maintained. The statute of limitations is a statute of repose, and in" the case of public officers, effect is to be given to it for such purpose.

The judgment of the Special Term sustaining plaintiff’s demurrer, should be reversed.

Present — Barnard, P. J., Tapper and Gilbert, JJ.

Order affirmed, with costs.

Cumming v. Brown, 48 N. Y., 514; Morris v. Van Voast, 19 Wend., 283.

6 Johns., 109.