15 Vt. 400 | Vt. | 1843
The opinion of the court was delivered by
It is first objected to the plaintiff’s right of recovery, that an officer, selling goods upon execution, is not authorized to give credit, or part with the goods until the money is paid. But it is not perceived how, under the circumstances of this case, such an objection can be made to avail the defendants. The property was received under the purchase, and it does not appear that the purchaser’s title has ever been questioned. It is therefore needless to discuss the strict powers of the officer, as a mere servant or minister of the law; for if any assent of the parties in interest was necessary to render the sale valid, the case furnishes sufficient ground for implying that such assent was given.
The remaining inquiry is, whether the plaintiff was entitled to prove that Houghton, who bid off the property, was but the agent of the defendants, and made the purchase for
In this instance the plaintiff had no intimation, until after the sale, that Houghton was püchasing for the defendants. Hence he was entitled to claim the benefit of the rule just laid down, unless he had precluded himself, by his return upon the execution, from proving that Houghton acted as an agent. It is held in this state, as in Massachusetts, that an officer’s return of his doings, so far as it relates to acts which are strictly official, is conclusive, as between the parties to the process, and as against himself; it being thus far regarded in the nature of record evidence. But we think that no just application of the rule can extend it beyond the facts certified in the return. It has never, to our knowledge, been held to render the return conclusive as to mere inferences or presumptions upon which it was silent, though they were such as might properly arise from the facts returned. These are left to the operation of the common rules of evidence ; and if, from their nature, they might ordinarily be explained or rebutted by evidence, they remain liable to be so met, notwithstanding the return. This is not to contradict the return, but merely to obviate an inference from it. We consider that, upon this ground, the evidence offered at the trial was admissible. Its object was not to disprove an ostensible sale of the property to Houghton, (and that was all that the return expressly alleged) but to show the capacity in which he acted in relation to these defendants. It would be inferred from the return, in the absence of other proof, that Houghton purchased in his own right; and to repel that inference the evidence was offered.
If it be said that the effect of the evidence would be to
As, in our opinion, the county court erred in rejecting the evidence offered, the judgment below must be reversed.