their indictment; or it may have been from the fact that the notion has been entertained, that for a neglect of duty, a mere subordinate of the Sheriff is not liable to indictment. From my knowledge of human nature, and the general course of things in society, I should rather put it upon the latter ground, and that is, that it is not subject-matter for an indictment.

Now, I shall not elaborate at all in any remarks that I shall have to make to the Court; but shall simply state my positions, and leave them with the Court. The case comes up in this way. Arthur T. Jones, a gentleman well known in this community, claimed to have bought a white horse from a man keeping a stable somewhere up-town.

MR. WHITING.-What difference does it make, whether it was a horse or a mare?

MR. BEEBE.-It was a horse as found in this indictment, and not a mare.

MR. WHITING.-But on this motion we have nothing to do with the facts.

MR. BEEBE.—I am stating the manner in which, on the face of the indictment, the matter comes up. The word "white" is not there, but "horse " is. I add "white." Perhaps it may be a surplusage, and if so, the Court will strike it out. In a suit commenced by John Collins, Jr., and Maria, his wife, they claimed that white horse. (I beg pardon: I will leave out that word "white.") They brought an action for the recovery of personal property, under the Code, for that horse. Mr. Carlin was the Deputy Sheriff who executed the writ. It is alleged, in one count of the indictment, that he failed to deliver the horse to the defendant in that suit, to wit, Arthur T. Jones. That he willfully neglected to do it, after Mr. Jones had put in the bond under the act. And for that reason, he is indicted here for a willful neglect of duty. These are the facts, with this simple addition, (and it is but justice to Mr. Carlin that I should mention it,) that Mr. Jones, through the agency of Mr. Carlin, is now enjoying the luxury of riding behind that white horse. (Laughter.)

Now, sir, the first point which I take in this case, is this: the defendant cannot be indicted as a Deputy Sheriff. The defendant is not a public officer, within the meaning of the law, and cannot, therefore, be indicted for neglect of duty-whether willful or otherwise. He receives his appointment from the Sheriff. He is called into existence by the Sheriff, and with the Sheriff dies. He has no responsibility to the public, except that sort of responsibility which any subordinate in any public office has. He gives a bond. It is a bond to the Sheriff, and not to the people. No man who has been aggrieved by his neglect of duty can sue upon that bond. If he received money, he cannot be sued for the money, because he is but the agent of the Sheriff. If the Sheriff's term were to expire to-morrow, or if he were to die, he would die with the Sheriff. That is so, except with respect to the Undersheriff. There is an officer known to the law as Undersheriff, who, in the event of the death or removal of the Sheriff, survives him, and continues to act until another man is qualified to take his place. But it has been expressly decided, that the Deputies die with the Sheriff. It is like a man in business employing a clerk, or any other agent, for the transaction of his business. A Deputy Sheriff may be indicted for what any citizen could be indicted for-extortion, corruption, misdemeanors, recognized by the common law. Any act for which any private citizen could be indicted, would be cause for indicting a Deputy Sheriff, and no other acts. In other words, sir, the position covers the ground, that he is a mere creature or agent of the Sheriff, and for his acts the Sheriff alone becomes responsible, when those acts grow out of his duties. He lives but at the will of the Sheriff. He has existence only so long as the Sheriff chooses to give it to him. It is like the case of the Comptroller's office, or any other public office in this city, where the officer, has power to appoint his own clerks; and those clerks are appointed at pleasure and removed at pleasure. It is not even so strong as any one of those cases would be; because these men depend entirely upon the will of the Sheriff. Although the Comptroller might die to-morrow, yet the

clerk might continue in his office. But if the Sheriff die to-morrow the Deputy Sheriff loses all power. He can serve no process, and, in fact, do nothing until a new appointment is made, and he is regularly placed as a subordinate by his superior. I refer the Court to 2nd Comstock, page 126.

THE RECORDER.-What is the name of the case?

MR. BEEBE.-I think Colbrooke is one of the names; but it is a case where a Deputy was sued for money which had been received by him, and where the party claiming the money was clearly entitled to it. About that there was no dispute. But it was held that the Deputy was the agent of the Sheriff, and that the Sheriff could alone be sued. That doctrine is too familiar.

MR. WHITING.-I do not dispute it.

MR. BEEBE.-I do not ask you to do it. I presume you will not. Unfortunately for the case of the gentleman, or perhaps, for my case, I have been unable to find any case where an attempt has been made to indict a Deputy before. It has this rare virtue, at any rate that it is novel. I will admit that the gentleman's experience in criminal law is much greater than mine, and his reading more extensive. Though he does not outnumber me much in years; yet my experience, I admit, cannot be compared to his. But in my reading, I have not been able to discover any case where a mere Deputy Sheriff, for neglect of duty-for that sort of an offence which would constitute no crime in a citizen-has been indicted. So much for the general principle; a position which goes to the whole indictment.

I have one or two points which I shall urge in regard to the indictment, in detail; but I merely throw them in incidentally, because the Court will agree with me, that the main point is, Whether a Deputy Sheriff is liable to indictment for neglect of duty? In order to show how the indictment is defective, in the first place, I will trouble the Court to listen to the reading of it:

[Reads.]"As such Deputy Sheriff, and public officer, and under process in replevin and claim for the delivery of personal property."

Now, I say that word replevin is not sufficiently anglicized yet to answer the purpose of the framers of the Code; and "the action of replevin" was therefore abolished, and the "action for the recovery of personal property" was put in its place. I say, therefore, that there was no such action, according to law, as a process of replevin, when this indictment was found; to wit, on the 19th day of January, in the year 1855. That is the first count of the indictment, and to that point I call the attention of the Court.

We now come to the second count of the indictment, for it numbers several counts.

[Reads.]—" A horse of the value of $100, under certain process in replevin, or for the claim and recovery of personal property."

Now, sir, the form of the action is either one or the other. That states it in the alternative. The pleader is bound to state which action it was.

THE RECORDER.-The Code abolishes the action of replevin, but the effect of the process is precisely the same. They abolished the word, not the action itself.

MR. BEEBE. That is very likely; but can you charge a man with a criminal offence, for doing a certain act, under process in replevin, when no such process is known to the law? The next count in the indictment is subject to the same criticism.

THE RECORDER.-What do you understand to be the rule, Mr. Beebe? In cases where there is a redundancy in the indictment, that may be all stricken out and leave sufficient substantive matter.

MR. BEEBE.--It may be so; but the Court cannot strike out a material allegation in order to make it a good indictment. Now, sir, the last count in the indictment is, that he, the defendant, did deliver, out of his own possession, to one of the plaintiffs, in a replevin suit brought by John Collins, Jr. and Maria his wife, against Arthur T. Jones and others, one horse, of great value, to wit, of the value of $100—the property of Arthur T. Jones; from whose possession the said Thomas Carlin had taken the horse, under and by virtue of a process of replevin, or claim for the recovery of personal property, and so forth.

Now, I say, that that count is subject to the same criticism, with this addition that on its face it makes no offence. For it is no offence, in the eye of the law, to deliver property. The count should have gone further, and stated why. There is another point, if the Court please, which extends through the various counts. In order to convict a party of an offence, the proving on the trial that the party willfully neglected to do his duty, must be a point; from which corruption, to a certain extent, must be inferred. But in order to constitute a crime, within the law, it should be more than neglect of duty; it should be more than willful neglect of duty; it should be a corrupt neglect of duty. And that runs through every count. I contend that the indictment should have stated that it was a willful, and corrupt, and fraudulent neglect of duty.

I would state, in conclusion, that on this question of the appointment of Deputy Sheriffs, and also as to their powers, and what their exercise is, I would refer the Court to some authorities on the back of these points, which I now deliver to Mr. Whiting. I refer to 10 Paige, and 2 Denio, which decide that the Deputy dies with the Sheriff.

MR. WHITING.-There is no doubt about that.

Mr. BEEBE.—And I also refer to a case in 2d Denio, on the subject of the impossibility of suing an agent.

MR. WHITING.-That I will also admit. There will be no necessity for your honor to look into these cases, because they refer to holding the agent accountable civiliter. I admit that if the wrong perpetrated by the Deputy only gave the party recourse to a civil remedy, he must proceed against the Sheriff, not against the Deputy.

That principle has been acted on for two centuries; and if authorities are uniform on any subject, they are on that. I admit that if the only remedy a party had against a Deputy Sheriff, were to call on him to answer civiliter, and not criminaliter, no indictment would lie.

Now, my learned friend says, "This action is a novel one." It may be for this country; but where the common law is well under