Grinnell v. Phillips

1 Mass. 530 | Mass. | 1805

Lead Opinion

Thacher, J.,

(after stating the case.) From the best consideration I have been able to give this case, it appears to me, both upon principle and authorities, that the action is well brought, notwithstanding the objection to the declaration on account of its being general. The sheriff is accountable for the acts of his deputies, and, in the case before us, has, in his defence, avowed the act [ * 535 ] * complained of and made it his own; as much so as if he had stood by at the time, and commanded the deputy to do it. But without that, from the nature of the office and the relation between the sheriff and his deputies, I am of opinion that the sheriff is liable in this action, and therefore that judgment must be entered for the plaintiff, according to the verdict.

Sewall, J.

The general question arising in this case, and to be determined in deciding the question immediately before us, is, whether an action of trespass, vi et armis, will lie against a" sheriff for the faults of his deputy, where no immediate command, consent, or recognition, by the sheriff, of the act alleged to be a trespass, appears in the evidence.

The law, undoubtedly, is, that in trespass al1 are principals, as well those who command or procure, as those who, being present, are the immediate agents in the act complained of. Therefore in declaring, in' actions of this nature, it is never necessary to distinguish between the adviser, the companions, and the agent; for each and all are answerable severally and jointly ; and all as principals. That this is the legal effect, where the proof is of a direct command, is not disputed. That an implied command has the like operation, appears by the legal doctrine respecting masters and servants. It seems to be well established, by ancient and modern decisions, that the master is liable for every act done by the servant in the course of his employment, the law implying, from their relation, and from the circumstances of the act, that it is done by the procurement and command of the master. The law views the relation of a sheriff and his deputies in the same light. In official acts they are not distinguishable from each other; the relation of command and agency is more intimate and direct, and the responsibility of the principal or master, for the * acts of the servant, is maintained upon stronger reasons [ * 536 ] of public policy and regard to the public welfare than in any case which can be supposed within the common relation of master and servant. The cases which have been cited establish these principles, and warrant, in my opinion, this conclusion from them as applied to the case before us, that Phillips, the defendant, is answerable for the acts of his deputy, Clarice, which are alleged, and which the defendant has undertaken to justify, as done by Clarke, under color of the office which he holds under Phillips, and as his servant and agent.

The supposed distinction which has been argued from the different modes adopted in England, and in this jurisdiction, for the appointment and employment of a deputy-sheriff, is rather, in my mind, favorable to the opinion I have expressed. With us the deputy acts, by a general command ; the authority vested in him is an implied command of the sheriff in every act; whereas in England, there might be some color for an argument that the special command of the sheriff, authorizing the performance of a lawful act, in a lawful manner, is no authority to the deputy in any illegal proceeding.

The supposed inconveniences to the sheriff, viz. a want of notice and the deficiency of evidence in the record against him, which ought, as it is said, to be so explicit in the demand, as to enable him to pursue upon it for an indemnification against his deputy and sureties, urged as objection, against the declaration used in this case, as being too general, appear to me to be of very little importance. The first may be always remedied, where a real inconvenience is suffered or apprehended, by an application to the Court, by requiring a bill .of particulars, or postponement for inquiry, or by a plea which will compel the plaintiff* to [ * 537 ] specify his charges ; as, by a justification under a particular process. And upon the second point, it is a sufficient reply that the decision against the sheriff is not conclusive against the deputy or his sureties.

The verdict in this case is, therefore, n my opinion, to be confirmed, as rendered upon satisfactory evidence and a sufficient declaration.

Sedgwick, J.

This action is brought against the late sheriff of this county, and the single question is, whether an action of trespass, vi et armis, will lie against a sheriff for the act of his deputy in taking the goods of á stranger to satisfy a writ of execution.

If this case were to be decided on principle, independent of all authority, there would, in my mind, be no doubt. There is nothing in which the security of the rights of the people is more interested than in defining, accurately, the limits of the authority of a sheriff, and in giving a prompt and effectual remedy whenever those limits shall be transgressed. . This cannot be the case if, for injuries done by sheriffs’ officers, by color of their offices, redress can be obtained only from them. The office of sheriff is of the highest nature from the importance of the trusts confided to it, and the great power with which it is invested. The officer himself is supposed to possess a respectable character, corresponding to the importance of his trust and powers. He is appointed on the responsibility of the supreme executive ; and, to give the greater security, bonds, with sureties, are given for a general indemnifica tion against the misconduct of the office. It must be most evident that public policy would dictate that such an officer should be immediately responsible for all injuries done in the office, and that the injured should not be shifted off, and obliged to resort to his officers ; men appointed by him, and who hold their offices [*538] during his pleasure; *and for whom he has received such security as was satisfactory to him. The office is one—the office of sheriff—and so much is it so considered that in the case of Cameron Al. vs. Reynolds, ^(a) it was determined, “ that all actions, for breach of duty of the office of sheriff, must be brought against the high-sheriff, though by "default of the under-sheriff ; ” that such actions must be brought against the high-sheriff as for an act done by him; and if it proceeds from the default of the under-sheriff or bailiff, that is a matter to be settled between them and the high-sheriff.

Here it may be observed that if trespass, vi et armis, will not lie against the sheriff, no action will. ⁽¹⁾

The counsel for the defendant has rested his argument principally upon authorities; and he cited 2 Rol. Abr. 552, pl. 9, 10. Laicock’s case in Latch, 187, and Saunderson vs. Baker & Al., reported in 3 Wils. 309, and also in Black. 832. In Rolle, pl. 9, it is said, “ If a sheriff malte a warrant, to the bailiff of a franchise, to take the goods of a man in execution, and he mistakes the goods, and takes the goods of another man, the bailiff is the trespasser, and not the sheriff.” This is undoubtedly good law, because the bailiff of a franchise is not a sheriff’s officer, in any sénse : he is neither appointed nor removable by him. It is next laid down in Rolle, pl. 10, “ If a man be arrested by the bailiffs of the sheriff, and thereupon he showeth to them a supersedeas to discharge him, and the bailiffs refuse it, and afterwards detain him in prison, he shall have false imprisonment against the bailiffs, and not against the sheriff.” Of this case Lord Mansfield says that, “ when rightly understood, it will appear to be a particular exception to the general rule ; and the true inference from it is that * where there [ * 539 ] is no exception, the sheriff is liable.” ^(a) It may be added that the detention by the bailiffs, from the time the supersedeas was shown to them, can hardly be said to be done by color of their office, but was rather, merely, an act of personal violence. The case in Latch I consider as in point for the plaintiff To me it seems to establish the distinction—a distinction which has ever since been respected—that the sheriff shall be answerable cimliter, but not criminaliter, for the acts of his under-officers; and to make him answer cimliter is the object of this action. The case of Saunderson vs. Baker Al. was cited only from Wilson. It is also reported by Judge Blackstone. ^(b) It has been argued that the case was there determined on the ground of the recognition by the under-sheriff of the act of Bolland, the sheriff’s bailiff; and therefore that, independent of such recognition, the action could not have been supported. From the case as reported by Wilson there seems some foundation for the argument. It might, at least, admit of a doubt. But this doubt is removed by the report of the case in Blackstone; by which it is manifest that all the judges were of opinion that the action will lie, independent of the recognition. Nor is it possible, in my opinion, that the recognition by the under-sheriff could have the least influence upon the case ; for the sheriff was no more responsible for the act of his under-sheriff than for the act of his bailiff; nor do I perceive that the recognition was an official act of the office of sheriff; and the sheriff could therefore in no sense be liable in consequence of it.

But this question was finally decided in the case of Ackworth vs. Kempe. ^(c) It was an action of trespass, vi et armis. The goods of one Wise had been conveyed to Ackworth by a bill of sale. * Two writs of fieri facias, at the suit of dif- [ * 540 ] ferent persons against Wise, were delivered to the sheriff of Sussex, the defendant, who granted warrants to his officer to execute them. The officer, in consequence of the warrants, took the goods abovementioned in execution and sold them. Whereupon the action was brought, without joining the officer as a defendant. The plaintiff obtained a verdict; and upon a motion for a new trial, several grounds were assigned, and among them, “that the action would not lie against the sheriff, because, his warrant being to take the goods of Wise, he had given no authority to his officer to take the goods of any other person ; and therefore was not answerable, if goods which did not belong to Wise had been taken.” All the other grounds than the one abovementioned having been removed, the court took time to consider that; Lord Mansfield, at the same time, observing that if trespass would not lie, no other action would. After deliberation, the judgment of the court was delivered unanimously in favor of the plaintiff; the Chief Justice, in the conclusion of his argument, observing that the point appeared to be extremely clear, and that it was not fair to puzzle the court so long with it.

The question again came under the consideration of the Court of King’s Bench in the case of Woodgate vs. Knatchbull. ^(a) It was an action grounded on the 29 Eliz. c. 4, for extortion by taking a greater recompense than was allowed for levying an execution. There were three counts in the declaration, all of which charged the excess to have been taken by the sheriff. On the trial it appeared that the sheriff’s officer had committed an offence against the act of parliament, but that the sheriff was a stranger to and had not intermeddled with the transaction. For this reason [■*541] a rule * was obtained to show cause why the verdict, which had been found for the plaintiff, should not be set aside. The case was argued with great ability, and the rule to show cause why the verdict should not be set aside was unanimously discharged by the court. Ashurst, J., observed that “ there is one general principle which appears to be clear—that the sheriff is personally liable for every act of his bailiff.” Buller, J., adds, “ The sheriff is the only officer known to this court; he may employ whom he pleases, but he is answerable, civiliter, for the acts of all those employed by him. On the general question I have no sort of doubt but that the sheriff must be answerable.” And Grose, J., aftei declaring himself, without any doubt, in favor of the action, concludes an able argument by observing—“ It has been said that there will be a hardship on the sheriff; but I think that the hardship is on the other side. For if the sheriff be not liable, the party can only have recourse to the bailiff who is unknown to him, but who is well known to the sheriff; and therefore the sheriff knows his security, but the party does not.”

On the whole we are all of opinion that this action is well supported by the evidence, and therefore that judgment must be entered according to the verdict, ^(a)

Judgment for the plaintiff.

Afterwards a motion was made to set aside this verdict, upon a suggestion of gross misbehavior in the jury. Sedgwick and Sewael, justices, against the opinion of Thacker, J., admitted one of the jury, offered as a witness by the defendant, to be sworn and examined respecting their conduct in finding the verdict. From his testimony, the fact appeared to be, that ten of the jury, before a unanimous consent in a verdict for the plaintiff, named each of them a sum for damages: * the witness and [ * 542 ] another juror refusing to name any sum. The sums mentioned being added together, the amount was divided by twelve, and the sum thus found became the amount of damages in which all the jury finally agreed. Their verdict, afterwards delivered and confirmed in court, in the presence of the witness and the other juror who had before dissented, was there received and recorded. This witness also swore that he had thought it his duty to coincide with the rest of the jury, but in his mind he had never approved o' the verdict or consented to it.

After hearing this testimony, Thacher, J., retaining his opinion, that no evidence ought to be heard from a member of the jury upon suggestions of this kind, was for rejecting the motion.

(a) Cowp. 403.

(1) Quære of this. The question seems not so much to be a question of principle as of the form of action. There can be little doubt, that the sheriff is answerable, civiliter, for every act of his.deputy done virtute or colore officii, whether the act be done in strict pursuance of the authority or not. Indeed if this were not the case, the sheriff would not be responsible at all for the malfeasance' of the deputy ; for if the deputy act rightfully, no action of course could lie; if he act wrongfully, the answer would then be, that his authority was only to do legal acts, and he was not the servant of the sheriff to do wrong. The only doubt can therefore be, whether the action should be trespass or case. The Court of C. P. in England said, that “ it was difficult to put a case where the master could be considered as a trespasser for the act of his servant.” (3 H. B. 442, Morley vs Guisford.)

(a) Ackworth vs. Kempe Doug. 42.

(b) 2 Bl. Rep. 832.

(c) Doug. 40.

(a) 2 T. Rep. 148

(a) Vide post, vol. xi. 57, Barnes vs. Hurd; and the query how far the opinion of the court in that case is consistent with that here given in regard to the proper form of action. [Campbell vs. Phelps, 17 Mass. 244. 1 Pick. 62. But see the note to this case, 17 Mass. 244.—Ed.]

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Concurrence Opinion

Sewall, J.

I concur with my brother in rejecting the motion ; but it is upon another ground. The facts sworn by this witness do not warrant the charge of gross misbehavior, or show any im propriety of conduct in the jury sufficient, in my opinion, to invalidate their verdict. ⁽¹⁾ , And upon the other point to which the witness speaks, he is not to be believed or heard. The record of a verdict implies a unanimous consent of the jury, and is conclusive and incontrovertible evidence of the fact. Besides, the secret intention or mental act of a juror can never be a subject of legal inquiry, and, from the necessity of the case, his conduct before the court is the best and only evidence that can be admitted of his assent to a verdict delivered in his presence. With respect to the conduct of the jury among themselves previous to their verdict, the testimony of a juror may be admitted as to overt acts, which maj be the subject of legal inquiry, and in that each member of the jury may be a competent witness. And when, upon such [ * 543 ] evidence, any gross misbehavior or legal * impropriety of conduct, sufficient to destroy the credit of a verdict, shall be made to appear, a verdict thus invalidated ought to be set aside. But this has not happened in the present case. The members of a jury, before they agree, must argue the questions of the case committed to them, and each man may be supposed to express his opinion as to the general question for which party the verdict shall be, and, if for the plaintiff, for what amount of damages. It is not important, as it strikes me, by what method a sum for damages shall be proposed, if finally there is a unanimous assent of the jury in the sum declared by their verdict. ⁽¹⁾

Parker and Wilde for the plaintiff". S. Thacher and W. Crosby for the defendant.

Sedgwick, J., gave no opinion upon the effect of the evidence: but the motion was rejected.

(1) Upon a motion to set aside a verdict upon an affidavit of two jurors, who swore that the jury, being divided in their opinion, tossed up, and that the plaintiff’s friends won,

Lord Mansfield said, the court cannot receive such an affidavit from any of the jurymen themselves, in all of whom such conduct is a very high misdemeanor; but in every such case, the court must derive their knowledge from some other source ; such as from some person having seen the transaction through a window, or by some such other means; and the rule was refused. (1 Durnf. East, 11. Vaise vs. Delaval.)

So where, upon a motion for a new trial, the affidavit of the foreman of the jury was produced, to prove that the verdict was decided by lot. Lord Chief Justice Mansfield, after consulting the judges of the other courts, delivered the opinion of the Court of Common Pleas, that the affidavit of a juror could not be received. His lordship observed, that it was singular that almost the only evidence of which the case admits should be shut out; but considering the arts which might be used if a contrary rule should prevail, he thought it necessary to exclude such evidence; and his lordship suggested, that if it were understood that verdicts might be thus set aside, a juror friendly to one of the parties might propose a decision by lot, with a view to such a result. (Brooke vs. White, 1 Bos. & Pul. N. S.) [Owen vs. Warburton, 1 N. R. 326.—Ed.]

In a similar case, which arose in the Supreme Court of Pennsylvania, Yeates, Justice, delivered his opinion at length, that the deposition of one of the jurors that they decided their verdict by lot ought not to be received. The other justices gave no opinion upon this point. Claggage vs. Swan. 4 Bin. Rep. 350.

[Affidavits of jurymen will not be received to impeach a verdict.—Dana vs. Tucker 4 Johns. Rep. 487. Sargeant vs. Denniston, 6 Cowen, 106. Ex parte, Kendall, 6 Cowen, 53.—People vs. Columbia. Common P eas, 1 Wend. 297.—Robbins vs Wendover, 2 Tyler, 13.—3 Gill. Johns. 473.— Willing vs. Swasey, 1 Browne, 132. —Bladen vs. Cockey, 1 Har. & M'Hen. 230.—Saville vs. Ld. Farnham, 2 Man. & Ry 216.—Ed.]

(1) Upon a rule to show cause why a new trial should not be had, it appeared that the jurors, not agreeing as to the finding of a verdict, voted for one; that the votes oi seven of them were for finding it as it was found, and that no objection was made by the other five when the verdict was given.

The rule was discharged.

And by the Court. Nothing in this case was determined by chance. The five jurors might ultimately be convinced by the seven. But if they only acquiesced in the finding of the verdict, that is sufficient; and they shall not now be received to say that they did not acquiesce. Lawrence vs. Boswell, Say. Rep. 100