Charles Kimball & Co. v. Perry

| Vt. | Feb 15, 1843

The opinion of the court was delivered by

Williams, Ch. J.

In this case it appears, that after the plaintiff had made out a prima facie case, the defendant offered certain testimony, which was objected to. The court admitted the same, and declared their opinion of the effect of it. The plaintiff then submitted to a nonsuit. No other state of facts are now to be considered, than those presented to the court at the trial. The plaintiff was not compelled to submit to a nonsuit, but was at liberty, after the testimony was admitted, to offer evidence of any other state of facts which might take his case out of the law as supposed in the opinion of the court. The object of exceptions is to bring before this court, the decision of the county court, on any question of law decided by that court; and they should be so drawn as to present those questions, and none other; and it is not to be expected that any questions are to be raised in this court which did not arise in the county court on trial, or that the exceptions should be so guarded as to exclude every possible conclusion which might be drawn from them.

The questions in the present case are, .whether the defendant, as sheriff, is liable for the acts of his deputy, Russell, done under the instructions he received ; and, whether the attorney of the plaintiff was authorized to give those instructions.

The sheriff is made liable only for the official acts and neglects of the deputies, and he is authorized to take bonds of indemnity of his deputies against their official misfeasances and nonfeasances. If the defendant is liable in this case, the sureties of Russell, the deputy, are responsible to him ; and sureties are only held responsible according to the letter of their undertaking, which, in the present case, is only for the official acts, &c., of the deputy.

'' The duties of a sheriff, in the collection of executions, are pointed out by statute. He is to sell for money, and not for any other pay. He is to sell for cash, to be paid on delivery of the articles sold. Credit is unknown in the statute in sales by virtue of an execution. Hence there is no accountability for the value, or expense, of keeping property, as there would be, if he was directed to sell for collateral or specific articles, — no accountability for the responsibility of the persons to whom sold. No questions can arise, whether he conducted prudently in delivering the property sold without taking adequate security; — whether he was faithful in collecting, or what should be his compensation therefor. The risk is very trifling, when the sales are for cash, and the creditor, as he usually is, is ready to receive the avails, as soon as the sales are perfected. But the risk is very great if the sheriff, or the sureties of the deputy, are to be held responsible when the sales are made in any other way.

The language of the American and English authorities is explicit on this subject. In the case of Marshal v. Hosmer, 4 Mass. 60" court="Mass." date_filed="1808-03-15" href="https://app.midpage.ai/document/marshall-v-hosmer-6403149?utm_source=webapp" opinion_id="6403149">4 Mass. R. 60, Parsons, C. J., said, a sheriff was not responsible for the act of his deputy, when the latter acted under a contract obliging him to do what, by law, he was not obliged to do. The same idea was repeated in the case of Bond v. Ward, 7 Mass. 129. The case of Gorham v. Gale, 7 Cow. 739" court="N.Y. Sup. Ct." date_filed="1827-10-15" href="https://app.midpage.ai/document/gorham-v-gale-5465027?utm_source=webapp" opinion_id="5465027">7 Cow. 739, and Walden v. Davidson, 15 Wend. 579, are almost identical with the case under consideration. The cases of Cook v. Palmer, 6 Barn. & Cres. 739; Porter v. Viner, 1 Chitty’s R. 613, in notis, are equally explicit. The subject has been under consideration in the courts of this state. The case of Fletcher v. Bradley, 12 Vt. R. 22, and the case of Strong v. Bradley, 13 Vt. R. 9, are authorities directly opposed to the plaintiffs’ maintaining this action. The case of Strong v. Bradley again came before this court in 1842, and the court held that the letter of the attorney, mentioned in the case, did, ipso facto, discharge and release the sheriff from any liability. We do not perceive that the case of the N. H. Savings Bank v.--, 1 Metcalf, 34, which has been sent to our room since the recess at noon, and but a short time before we came into court, contravenes the authorities. The deputy had, there, attached certain goods, subject to prior attachments. Under a statute of that state, similar to ours, with the consent of the creditor and debtor, he was authorized to sell the property attached, and hold the proceeds to be applied on the execution, instead of the property. The statute directed the sales should be made as on executions, — that is, at public auction. The creditors and debtors agreed the sales might be at private sale and public auction. The deputy sold partly at private sale and partly at auction, and neglected to pay over the money on the executions; and it was held the sheriff was accountable. In that case, the duty of the deputy was plain to expose the goods to be taken in execution ; or, if he had received the value, to pay over the same. The court, however, in deciding that case, intimated that, in selling at private sale, the deputy acted as the agent for the creditors, and had paid to the prior attaching creditors an amount equal to what he had received at private sale, and said he had sold, at public auction, enough to satisfy the plaintiff in that case. If, however, the decision was directly on the point involved in the case before us, its authority could not be recognized, as we conceive it would controvert all the cases in New York, in this state, and in England, to which I have referred.

This view of the case answers all the exceptions. There was no offer to prove that the deputy had received any money, by the sales, under five dollars, unaccounted for; and his not returning the execution was consistent with the instructions he received. In short, it cannot be contended that he ¿cted partly as deputy sheriff, and partly as agent for the creditors. As Russell, the deputy, did not proceed in the ordinary line of his duty, but deviated therefrom, and proceeded in a way not known to the law, by the direction of the. plaintiffs’ attorney, the defendant cannot be held accountable, unless he should be considered as unjustifiable, in consequence of his deputy’s pursuing those instructions.

A question is, then, raised whether the attorney, Mr. Sheafe, was authorized to give those instructions. Of the authority of an attorney to give such instructions, at the time he gives to the sheriff executions, and the duty of the deputy to follow them, unless notified to the contrary by the creditors, we have no doubt. An attorney, employed to collect a demand when the creditor lives at a distance, and cannot be consulted, combines the character of agent and attorney. This was recognized in the case of Briggs v. Georgia, 10 Vt. R. 70. In the absence of his employer, he may pursue such a course as is apparently for the interest of his employer, and such as he would probably direct, if present. Crooker v. Hutchinson, 2 D. Chip. R. 117, and 1 Vt. R.73. The ¿ttorney may direct on what property an execution shall be levied — whether on land or personal property ; and that he may give instructions in relation to the levy, sale, and service of the execution, appears from the cases of Gorham v. Gale, 7 Cowen, 739, before mentioned; Porter v. Viner, 1 Chitty, 613, and Strong v. Bradley. Indeed, some of these cases may be considered ad idem with the present. The interest of the plaintiffs was undoubtedly considered, as there were several attachments prior to theirs, and the sales on credit afforded the fairest prospect of their realizing the debt. It is not said, or pretended, that the attorney acted contrary to any direction, instruction, or wishes of the plaintiffs ; but he acted in common with the other creditors. The execution was not discharged by giving those instructions ; and the only effect was, that the plaintiff must resort to the deputy, and not to the sheriff, to recover whatever money, notes, or other securities, he may have received on those sales. Russell received the notes and securities as agent for the creditors, including the plaintiffs, and is entitled to a compensation for his services in his agency, to be adjusted in a suit between him and the creditors ; but as he was directed to deviate from the course prescribed by statute, by the attorney having authority to give those directions, the defendant is not responsible.

The judgment of the county court is therefore affirmed.