Hill v. Pratt

| Vt. | Dec 15, 1856

The opinion of the court was delivered by

Isham, J.

The question as to the liability of the sheriff for the neglect of his deputy in not attaching property as directed in the writ, when no special instructions as to the manner of service were given, is to be determined by a construction of our statute, for no such proceeding is known at common law. The Comp. Stat. 97, secs. 4, 20, provides that the sheriff shall have power, and that it shall be his duty to serve and execute all lawful writs to him directed, according to the precept thereof and agreeably to their direction. It is also provided, 311, sec. 11, that “If in any case, there is reasonable doubt as to the ownership of the property, or its liability to be taken, the officer may require security to indemnify him for taking the same, and if the security is not provided, and no other property can be found, he may make his return of non est inventus.” It is not pretended in this case that any reasonable doubt existed as to the ownership of the property which the officer neglected to attach, nor is it pretended that the officer requested security to be given as an indemnity for making the attachment. The question is therefore unimbarrassed by the provision in that section of the act. The intention of the legislature is expressed in clear and explicit language. The officer is . required to serve the writ according to its precept and agreeably to its direction. When no special instructions are given, and property belonging to the debtor can be found in the exercise of reasonable diligence, it is the duty of the officer to attach the same to the amount and value specified in the writ, and to keep the same in custodia legis for the security and payment of the judgment which the plaintiff may recover. He is to look to and be governed by the directions in the writ, in which those specific instructions are given which points out his duty as it is required by the act. From the performance of that duty the officer is not relieved by any provisions of the statute, nor by any which have been passed in pari materia, except in cases of a doubtful ownership of the property, and where a bond of indemnity has been requested. This construction is in accordance with the letter of the act and is, we think, within its spirit. It fully protects the interests of the creditor, and at the same time it imposes no unreasonable risk upon the officer. It is possible that in practice a different construction may to some extent have prevailed, but the statute is too specific and plain in its provisions to be evaded or disregarded. In the case of Butts v. Norris, 15 Me. 468" court="Me." date_filed="1839-06-15" href="https://app.midpage.ai/document/betts-v-norris-4926959?utm_source=webapp" opinion_id="4926959">15 Maine 468, it was held that “ an officer is not bound to make a special service of a writ by attaching property without written directions to that effect.” The statuté in that state gives an additional compensation to the officer when service is made by the attachment of property. When no written instructions to attach property are given, the officer is not required to make service in that way; a general or nominal service, such as will enable the party to proceed with his suit to judgment, is all that is required. Under this statute, written directions to attach property must accompany the writ to impose upon the officer the duty which in this state is imposed by the delivery of the precept alone; Bradford v. McLillan, 23 Me. 302" court="Me." date_filed="1843-07-15" href="https://app.midpage.ai/document/bradford-v-mclellan-4927826?utm_source=webapp" opinion_id="4927826">23 Maine 302; 6 Shepley 79; 1 Mason C.C. 96" court="None" date_filed="1816-10-15" href="https://app.midpage.ai/document/burke-v-trevitt-8629149?utm_source=webapp" opinion_id="8629149">1 Mason 96; Bond v. Wood, 7 Mass. 133; Story on Bail 390; Drake on Attach., secs. 181-2.

The writ in this case was issued in behalf of the plaintiff against the Rutland and Burlington Railroad Company, and delivered to the defendant’s deputy with written directions to serve and return. The attachment was merely nominal, though ample security on personal property, then in the visible use and possession of the company, might have been obtained for the payment of the debt. Before final judgment -was obtained, the company became insolvent, and the debt valueless. Under those circumstances we think the ruling of the court below was correct, that the delivery of the writ to the officer to serve and return rendered it incumbent upon him to secure the debt by attachment of property, if the railroad company had attachable property in their possession, which might with reasonable diligence have been attached; and that for any neglect in that matter, the defendant is liable for 'damages sustained.

The duty of the officer in the service of writs is for the benefit of the creditor. It is due to him only, and the precept is so far under his direction and control that he is at liberty to waive it. If directions are given for the service of the writ in any other manner, or if any arrangement between the officer and creditor exists to that effect, the sheriff is relieved from any liability. Whether such an understanding exists or not is a question of fact to be determined on competent proof. We perceive no objections to the ruling of the court in rejecting the letter of September 6th, 1851, and the account as stated and settled under date of January 21, 1853. If the testimony had a tendency to show the fact for which it was offered, that a nominal attachment was made under an arrangement to that effect with the plaintiff’s attorneys, we have'no doubt of its admissibility. The testimony was rejected as having no such tendency, and we think properly so. The letter simply contains proposals under which, if accepted, the deputy sheriff could do the business of the office. The account rendered and settled shows that the terms of that letter were accepted and acted upon by the parties. No allusion whatever is made to the manner in which writs were to be served or the duties of his office discharged. It will hardly be contended that a simple agreement by the officer to take less than legal fees for the service of writs, will relieve him from the performance of such duties as are imposed upon him by statute.

The same observation may be made in relation to the letter stated to have been written by the deputy sheriff, after the service of the writ, and inclosing the same to the plaintiff’s attorneys, therein stating that the writ had been served agreeably to their directions, and to which no answer or reply was made. The only matter which it is contended gives weight to that letter as evidence in the case is a presumed assent of the plaintiff or his agents to the facts therein stated, arising from their silence or neglect to correct that statement. If a verbal statement of that fact had been made to the party or his attorneys, to which no dissent was expressed, it probably wmuld be evidence, and for the jury to say whether their silence amounted to an acquiescence on their part to the statement that such directions had been given. But it would seem that the rule has never been extended to unanswered letters ; particularly when the fact stated has relation to past transactions, and upon which no future action of the party is contemplated. The mere fact that letters were received and remain unanswered has no tendency to show an acquiescence of the party to the facts stated in them. A party is not to be driven into a corresponcence of that character to protect himself from such consequences. In the case of Firbee v. Denton, 3 Car. & Payne 103, the plaintiff had sent a letter to the defendant demanding a sum of money as due to him, to which no answer was returned. On the offer to prove its contents for the same purpose for which the offer was made in this case, Lord Tenterdon, C. J., observed: “ I am slow to admit that. What is said to a man before his face, he is in some degree called on to contradict, if he does not acquiesce in it; but the not answering the letter is quite different; and it is too much to say, that a man by omitting to answer a letter at all events admits the truth of the statements that letter contains. I am of opinion,” he observed, “ that this letter cannot be read.” It was evidence to show a demand of a specified sum, but not evidence of an indebtedness in that sum, or in any other amount.

We think the court were correct, also, in holding that it was not necessary to issue an execution on the judgment and deliver it to the officer within thirty days after its rendition. This is not a case in which the officer is charged with a neglect of duty in not keeping property attached to be applied on an execution, but the ground of complaint is the neglect of the officer in not making any attachment of property whatever.

The judgment of the county court is affirmed.