Hyde v. Cooper

26 Vt. 552 | Vt. | 1854

The opinion of the court was delivered by

Eedfield, Ch. J.

The only question reserved by plaintiff’s exceptions, (defendant’s being waived,) is whether the decision of the court, in regard to defendant’s conduct making him a trespasser ab initio, was correct. According to the recent English cases, upon this subject, to implicate one, as a trespasser ab initio, he must do, or consent to some act, which goes to show, that the original taking was with the purpose of putting the thing to an illegal use. These decisions go upon the avowed ground of narrowing, to the utmost, the extension of this doctrine, of making officers, and others, trespassers by means of some technical irregularity, in the detail of their duties. The professed object is a commendable one no doubt, and has been to a considerable extent adopted, by this court, in a late case in Grand Isle Co., Stoughton v. Mott, 25 Vt. 668.

Applying that rule to the present ease, it would not be easy to make even the officer a trespasser ab initio. It is in fact somewhat questionable, I think, whether there was any fatal irregularity in the sale. But as the exceptions are waived, on the part of the defendant, the plaintiff is probably fairly entitled to have it here considered, that the officer’s notice was insufficient, and .the sale being the same, as if made without any notice, might probably come even within the English rule of making the officer a trespasser.

But the jury having found that the defendant did not control the officer, he cannot be implicated, in the original wrong. And the expressing of an opinion under protest, as in the present case, it has often been held will not preclude the party, from recovering damages of the sheriff, for the very act, which it would, if he were thereby to be considered, as consenting to the act.

The only remaining question is in regard to defendant’s subsequent ratification of the act. What defendant said in regard to the officer having clone right, was said, when the party was objecting, to the sale being made, when but few bidders were present, and could not fairly be referred to the notice given. And defendant receiving the money has never been held, to imply any consent to any irregularity in the proceedings of the officer, even if known to the party, especially when such irregularity consisted, in some technicality, of which the party is supposed ordinarily not competent to judge. And in the present case the defendant is to be viewed^like any other party, not subject to any severer rule of judgment, on account of his supposed knowledge of the law, inasmuch as he disclaimed any purpose of assuming the responsibility of controlling the officer. His receiving the money would not seem to imply any assent to the officer’s proceeding beyond what had transpired before the sale.

No doubt, if the officer takes the property of one man, upon another’s debt, or sells, at private sale, and the creditor accepts the money, knowing the facts, he may be liable for the acts of the officer. But in such case the acts are not regarded, as official. But it would scarcely be consistent, with sound reason, to apply the same rule to all the acts of an officer. It would be almost equivalent to exonerating the officer, from all official responsibility.

The views here expressed are strongly confirmed, by the decision in the case of Abbott v. Kimball, 19 Vt. 551. As a general rule perhaps, where the mistake is one of fact, and such as makes the officer a trespasser, and the party knowing all the facts, consents to take the avails of a sale, or where he counsels the very act, which creates the liability of the officer, he is implicated, to the same extent, as the officer. But when the party does not direct, or control the course of the officer, but requires him to proceed, at his peril, and the officer makes a mistake of law in judging of his official duty, whereby he becomes a trespasser even, by relation, the party is not affected by it, even when he receives money, which is the result of such irregularity, although he was aware of the course pursued by the officer. He is not liable, unless he consents to the officer’s course, or subsequently adopts it. And if he does that, he cannot maintain an action against the officer, for doing the act, and the consequence would be, that if receiving the avails of a sale on execution were to be regarded, in all cases, as amounting to a ratification of the conduct of the officer, in the sale, it must preclude the creditor from all suit, against the officer, on that account, which has never been so regarded. The party may always take money, which the officer informs him he has legally collected without assuming the responsibility of indorsing the perfect legality of the entire detail of the officer’s official conduct, in the matter.

For if the officer is compelled to refund to the debtor, on account of his irregularity of procedure, that will not affect the right of the creditor to retain the money. He is still entitled to retain the money, against the officer. And the party cannot claim the money of the creditor, without thereby affirming the sale. So that the creditor’s accepting the amount of money, for which the property sold, is no more a ratification of the conduct of the officer, than if he took the money of the officer, on any other liability. The money is the officers, whether he was a trespasser or not, and he is at all events liable to the creditor. -If the sale was irregular, that is his loss, he must still pay the creditor, and accepting the money is but taking pay for the officer’s liability to the creditor, for his default in the sale, if it was irregular. So that in any view of the case, there is no ground of implicating the defendant.

Judgment affirmed.