1810, which confers the authority on the surveyor-general of NEW-YORK approbating deeds given by Indian patentees, or their heirs, May, 1818. restricts the approbation to legal deeds; the deed, then, to Gillet not being legal, the approbation on that ground was void, and being void, it is a nullity. The second point is untenable. The act of the 13th of April, 1813, requires only the approbation of the surveyorgeneral to be expressed by an endorsement on the conveyance; he is not required to set forth the reasons or inducements to such approbation, and the one given in this case is a compliance with the act. Judgment for the defendant. SEELEY V. BIRDSALL. SEELEY against BIRDSALL. An action on the case against a sheriff for a within the pro THIS was an action on the case against the defendant, late sheriff of the county of Seneca, for a false return on a writ of fieri facias, issued out of this Court, at the suit of the plaintiff, false return, is against W. I. Seeley. The cause was tried before Mr. J. visions of the Spencer, at the circuit in Cayuga county, where the venue was act for the more laid, in June, 1817. easy pleading in certain suits; 1801, sess. 24. the plaintiff is of action arose The plaintiff recovered a judgment against W. 1. Seeley for (March 21, 3,988 dollars of debt, and 14 dollars and 43 cents damages and c. 47. s. 4. 1 N. costs. A fieri facias was issued thereon, to which the defend- R. L. 155.) and ant returned, that he had sold all the goods and chattels of W. bound to show I. Seeley to be found in his bailiwick, and that he had made out that the cause of the same the sum of 10 dollars and 25 cents, and that he had within the counadvertised for sale all his right and title to a certain lot of land. ty where he has It was proved that one of the defendant's deputies had levied laid his venue. on property of W. I. *Seeley, to the amount of three or four hundred dollars; that the defendant recognized the levy; and that being requested by the plaintiff to sell, he refused, and never had sold the property levied on. There is a [ * 268] distinction between acts done colore officii and virtute officii; in the former case, the act office gives him The defendant's counsel moved that the Court would charge the jury to find a verdict for the defendant, because the plaintiff being of such a had not proved any act done by the defendant in the county of nature that his Cayuga. The judge, however, charged the jury to find a verdict no authority to for the plaintiff, subject to the opinion of this Court, and they, accordingly, found for the plaintiff. L. Sill, for the plaintiff. The defendant claims a privilege, or exception, which is to be taken strictly. The act (1 N. R. 155.) (a) requires the fact, or cause of action, to be proved to do it, the sheriff is not protected by the statute; but where, in doing an act within the limits of his authority, he exercises his authority im properly, or abuses the confidence which the law reposes in him, these are cases to which the statute applies. (a) 2 R. S. 353. SEELEY V. BIRDSALL. NEW-YORK, have arisen in the county where the venue is laid, What is May, 1818. the fact, or cause of action, in this case? The return of the writ. From the nature of the act of making the return, it is impossible to prove where it was made. It is a private act, and not within the intent of the statute. If it is necessary to show where it was done, the Court will intend that it was done in the county where the venue is laid. All presumption is against privilege; and in support of justice the Court will presume in favor of the plaintiff, and throw the proof of the contrary on the defendant. In Bogert v. Hildreth, (1 Caines, 1.) a mere transitory action was held not to be within the county. In Storm v. Woods, (11 Johns. Rep. 116.) which was an action for a false return against the sheriff of Washington, the cause was tried at Albany. There are numerous cases of actions for escapes, in which this objection was never made. (2 Caines, 46. 4 Johns. Rep. 45. 469.) The action for a false return is transitory, as the sheriff may make and deliver his return any where. (Griffith v. Walker, 1 Wils. Rep. 336.) [*269] Cady, contra. The privilege granted is not for the mere personal benefit of the sheriff, but for the sake of public convenience; as, otherwise, a sheriff might be called out of his county into every county in the state, to defend suits against him, to the great injury of the public business intrusted to his charge. Since the statute of 21 James I. ch. 12, which, except that sheriff's are not named in it, is similar to our act, actions against officers, which would otherwise be transitory, are regarded as local. In Lord v. Francis, (12 Mod. 403. S. P. Anon. 515.) it was held that an action for a false return was local, and the venue might be laid either in the county where the return was made, or in that in which it appeared of record. (1 Comyns, Dig. 164, 165. 168. Action. (N. 8.) (N. 11.) Such was the law before the statute which has made no further change than to confine the action to the place where the act was done, instead of its being, also, laid in the place where the record is kept. The cases in this Court, which have been cited, were actions of debt, not actions on the case. At any rate, the venue should be laid in the county in which the sheriff resides, for there it must be presumed that he does all his official acts. Per Curiam. An action on the case against a sheriff for a false return on an execution, is within the first section of the statute, (1 R. L. 155.) (a) “for the more easy pleading in certain suits;" and, consequently, the burthen of the proof, that the cause of action arose within the county wherein the venue is laid, is thrown on the plaintiff, and the failure to give that proof entitled the defendant to a verdict of not guilty. (a) 2 R. S. 353. The words of the statute are very plain and perspicuous. If any action upon the case be brought against any sheriff, &c., for or concerning any matter or thing by him done, by virtue of his office, the said action shall be laid within the county where the trespass or fact be done and committed, and not elsewhere; and if, upon the trial, the plaintiff shall not prove that the cause of his action arose within the county wherein such action is laid, in every such case, the jury which shall try the same shall find the defendant not guilty, &c. The case of Griffith v. Walker, (1 Wils. 336.) which considers an action against a sheriff for a false return as transitory, was prior to the statute rendering actions against sheriffs for acts done by virtue of their offices local. The true distinction is between an act done colore officii and *virtute officii: in the former case, the sheriff is not protected by the statute, where the act is of such a nature that his office gives him no authority to do it; but where, in doing an act within the limits of his authority, he exercises that authority improperly, or abuses the confidence which the law reposes in him, to such cases the statute extends. New trial granted. NEW YORK SKILDING V. WARREN. [* 270 ] SKILDING and HAIGHT against WARREN. THIS was an action of assumpsit, brought by the plaintiffs, as endorsees of a promissory note, dated May 23d, 1815, for 500 dollars, payable in six months, to Moses Warren, the defendant, made by Gilchrist and Warren, and endorsed by the defendant, Moses Warren, and by Benjamin Smith. A note was defendant for the endorsed by the accommodation who were then in good credit. Before negotia of the makers, ting the note, defendant then At the trial before Mr. J. Spencer, at the Rensselaer circuit, in December, 1817, the counsel for the defendant admitted all they became inthe facts requisite, in the first instance, to support the plaintiff's solvent, and the action, and then offered Jonathan Warren, one of the makers directed them of the note, as a witness in relation to the origin and transfer of not to part with it, which they it. He was objected to by the counsel for the plaintiffs on the promised. They ground that a party to a negotiable instrument is an incompe- awards palie tent witness to impeach it: but the objection was overruled, plaintiffs, with and the witness admitted, who stated the following circum-full notice of all pass the circumstan ces, in satisfaction of a debt due from them to the plaintiffs, which covered part of the amount of the note, receiv ing from the plaintiffs the balance in cash. The plaintiffs brought an action on the note against the endorser. Held, that the plaintiffs were not bona fide holders of the note, and could not, under the circumstances, support the action; and that as the defence rested on matters arising subsequent to the execution of the note, one of the makers of it was a competent witness to defeat the recovery; and that without a release, he being indifferent between the parties. (a) A party to a negotiable instrument is inadmissible, as a witness, to show it void at the time of its execution; but he is competent to testify as to facts subsequently arising. (a) Vide Wardell v. Hughes, v. Mathews, 3 Cow. Rep. 252. Steford v. Rice, 5 Cowen 23. M'Fadden v. Maxwell, Id. 188. 3 Wendell's Rep. 418. Powell v. Waters, 8 Cow. Rep. 669. Williams SKILDING V. WARREN. [*271] NEW-YORK, stances:-The note in question was an accommodation note, May, 1818. endorsed by the defendant, without consideration, to enable the makers, who were partners in trade at Troy, to pay their debts, and carry on their business. They expected to be able to obtain the money from one Wiswall, who not being at home when the *note was made, which was in the latter part of April, or the beginning of May, 1815, the date of it was left blank, and the makers had permission to fill it up whenever they should obtain the money. Disappointed in procuring it from Wiswall, and in want of money, they filled up the date on the 23d of May, and procured the endorsement of Smith, and endeavored to negotiate the note, but were unsuccessful. In the latter part of June, Gilchrist and Warren, who had, until then, been in good credit, failed, and became insolvent; and soon after, the defendant inquired of J. Warren, the witness, what had been done with the note, and being told that it was still in their possession, expressed his satisfaction, and directed them not to part with it, which the witness promissed. Gilchrist and Warren were indebted to the plaintiffs in about 250 dollars, 70 dollars of which were borrowed money, and the residue was on a note not then due; and soon after their failure, the plaintiff Haight called on them for payment of the 70 dollars, which they said they were unable to pay. Haight then proposed taking the note in question, and after deducting the amount of the account of the plaintiffs, to pay them the balance. The witness told Haight that they could not part with the note, and stated to him that the note was endorsed by the defendant, without consideration, for their accommodation, when they were in good credit; that, since their failure, the defendant had directed them not to part with it, which they had promised, and that they were insolvent, and unable to pay the note, or to indemnify the defendant. Upon this, Haight proposed not only to pay the balance of 250 dollars, but to wait two years for the payment of the note, and also to sign a letter of license, giving them two years for the payment of their debts, and to exert the influence of the plaintiffs with their other creditors to obtain their signatures to the same; and if they could not pay the note at the end of two years, to give them further indulgence, if there was a prospect of their being able to pay it within a reasonable time. Two or three conferences subsequently took place, in relation to the subject, and finally, about the third of July, Gilchrist and Warren delivered the note to the plaintiffs, who, a few days after, paid them the balance. The witness understood the agreement of the plaintiffs *to wait for payment, to extend to the endorsers of the note. : * 272] Upon this evidence, the jury, in conformity to the charge of the judge, found a verdict for the defendant, which the plaintiffs now moved to set aside, and for a new trial. Huntington, for the plaintiffs, contended, that Warren was an incompetent witness; that no person whose name is on a nego May, 1818. SKILDING V. WARREN. tiable instrument is competent to prove it void in its inception; NEW-YORK, or, at the time he put his name on it, and gave it currency. (Mann v. Swan, 14 Johns. Rep. 270. Walton v. Shelly, 1 Term Rep. 296. Winton v. Saidler, 3 Johns. Cas. 184. Baker v. Arnold, 1 Caines's Rep. 258. Stille v. Lynch, 2 Dallas, 194. Jordain v. Lasbroke, 7 Term Rep. 601. Bent v. Baker, 3 Term Rep. 34. Peake's Cas. 40. 118. 1 Esp. Rep. 298.) The date of the note, in this case, was immaterial. It took effect only from its delivery, (Lansing v. Gaine & Ten Eyck, 2 Johns. Rep. 300. 3 Esp. N. P. Rep. 103.) or from the time of its transfer, by endorsement to the plaintiffs. Though made and executed, it had no legal existence until it was endorsed; and the witness was called to prove a fact which destroyed the note to which he had given currency, and was, therefore, inadmissible, on the ground of interest. This case is distinguishable from that of Woodhull v. Holmes, (10 Johns. Rep. 231.) There the note was drawn and delivered to the payee, and by him endorsed to a third person, for a particular purpose, who fraudulently put it in the hands of a broker. (1 Day's Rep. 17. 3 Mass. Rep. 27. 365. 4 Mass. Rep. 156. 6 Mass. Rep. 449.) Sutherland, contra. The only objection at the trial was, that Warren was an incompetent witness, because his name was on the note, not on the ground of interest. The general doctrine of the case of Walton v. Shelly has not been considered as law in England, since the case of Jordain v. Lashbroke, and the judges there, at N. P., have uniformly received persons whose names were on negotiable paper, to impeach it, unless interested. (Jones v. Brooke, 4 Taunt. Rep. 464. 1 Esp. Rep. 176. Peake's Rep. 117. 5 Esp. Rep. 119. 13 East, 175. Phillips's Ev. 32, 33.) *The principle of the case of Walton v. Shelly has, it is true, been adopted in this Court, and in the Supreme Court of Massachusetts, but with some qualification. Though the party to a negotiable instrument is incompetent to prove it void in its inception, yet for any other purpose, as to prove facts subsequent to making the instrument, he may be a witness, if not interested. The rule in Walton v. Shelly is founded in public policy, and it is against public policy to give currency to instruments executed mala fide, or in violation of law. All the cases, except that of Stille v. Lynch, (2 Dall. 194.) in which the principle has been applied, arose out of gaming or usury. In Jackson, ex dem. Mapes, v. Frost, 6 Johns. Rep. 135. the grantor of a deed was admitted as a witness to prove it fraudulent, his interest having been released. In Hill v. Peyson, (3 Mass. Rep. 559.) the Supreme Court of Massachusetts held, that the grantee of a deed was a competent witness to prove it fraudulent. So, in Baring v. Shippen, (2 Binney's Rep. 154.) the assignee of a bond was admitted a a witness to prove that [* 273] |