11 W. Va. 81 | W. Va. | 1877
The writ of error in this case was obtained under the provision of section 1, chapter 16, of the acts of 1872-3, which allows a writ of error to the judgment of
No other ground for setting aside the verdict and granting the new trial, was made the basis of the motion in the court below, other than that disclosed in the affidavit, of after-discovered evidence. Notwithstanding this fact, if it appear from an inspection of the bill of exceptions made part of the record, and which sets forth all the evidence, the evidence was plainly insufficient to sustain the verdict; it was properly set aside, although the motion for the new trial was based solely on the one ground. Shrewsbury v. Miller et al., 10 W. Va., 115. From the whole evidence it can not be said there was not ample evidence to sustain the verdict of the jury; it is not contended here that there was not.
But it is insisted by the learned counsel for the .defendant in error, that the real party as plaintiff was not before the court; that the affidavit discloses the fact that there was no order committing the estate of Robert Little to the plaintiff, as sheriff of Jefferson county. Was not this matter among others in issue between the parties? and was there not sufficient evidence before the jury to authorize them to infer this fact?
There was no objection to any of the evidence introduced to the jury, and from what they had they might well infer that said estate was in fact committed to the said sheriff. It is now insisted that the fact was otherwise. If so why was it not so shown to the jury ? Even if it appeared that the wrong man was plaintiff, would it not have been proper to have proved that fact to defeat the plaintiff’s action ? What is the difference between the' wrong man being plaintiff, and the right man bringing the wrong action, an action on which he had no right' at all at law to recover ? In either case it would be the duty of the defendant to prove the fact before the jury, an.d such proof would entitle him ' to defeat the plaint-1 tiff’s action.
I see no reason to take this case out of the general
It is regarded as essential to the success of a motion ’ for a new trial on the ground of after-discovered evidence, that the testimony will in the opinion of the court, if a new trial is had, substantially change the verdict. The new evidence must'be material and of a decisive character, and such as to induce belief that injustice has been done, and on a new trial ought to change the
This presents the question, whether the sureties of an officer on his bond are responsible for such of his acts only as are done virtute officii, or whether they are also responsible for such as are done colore officii. If the sureties of Robert Lucas, Jr., would be responsible for his acts done colore officii, then the sureties of-the deputy would be responsible for similar acts.
On the common law principles governing the ordinary relation of principal and agent,-the sheriff" would not be responsible for an act done by his deputy colore officii; but on principles of public policy applying to the relation of a sheriff and his deputy, the former is liable in such a case; on the same principles it would seem that he and his sureties are liable on his official bond. Sangster et al. v. The Commonwealth. 17 Gratt. 131. It has been well settled that the sureties of a sheriff are responsible for his trespass in seizing and selling the goods of B. on an execution or attachment against A. 17 Gratt., supra and oases there citéd. And it is just as well settled, if the deputy of the sheriff does such an act, the sheriff is liable therefor.
In James v. McCubbin, 2 Call., 273, a deputy drove one man’s property on the land of another, in order that he might levy a distress warrant on it, which he did. Trespass m- et arms was brought against the sheriff therefor, and was unanimously sustained by the court. What more willful and'unauthorized act than this could have been done by a deputy ? In Mosby’s adm’r et al v. Mosby’s adm’r., Judge Moncure says with reference to that case: “There is another principle on which I - think
It has often been held, if a sheriff commits a trespass under color of a void writ, or a writ which is functus officio, he and his sureties are liable for such trespass; and, so he would be for a similar trespass under like circumstances committed by his deputy; and in the latter case, the deputy and his sureties on his bond would be liable to the sheriff.
In Knowlton v. Bartlett, 1 Pick. 273, the court says: “If the act from which the injury resulted was an official act, the authorities are clear that the sheriff is answerable; if it was not an official but a personal act, it is equally clear that he is not answerable. But an official act does not mean what the deputy might lawfully do in the execution of his office; if so, no action would ever lie against the sheriff for the misconduct of his deputy.
The statute in force at the time the deputy administered on the estate of George Little, is as follows : “ If at any time three months elapse without there being an executor or administrator of the estate of a decedent, (except during a contest about the decedent's will, or during the infancy or absence of the executor), the court in which the will was admitted to record, or wdiich has jurisdiction to grant administration on the decedent's estate, shall on the motion of any person order the sheriff or other officer of the county or corporation to
The question in this case is then reduced to this: “Was Jas. W. Campbell, deputy for Robert Lucas, Jr., sheriff of Jefferson county, while administering on the estate of Geo. Little, deceased, acting colore officii? We think he undoubtedly was. He collected the assets of the estate in the name of the sheriff as administrator de bonis non of said estate ; he paid debts as such; it is presumed he caused the settlement in the chancery suit to be made between Robert Lucas, Jr. administrator de bonis non of said Little and said estate; he held himself out to all interested in said estate, that he was acting for the sheriff as administrator de bonis non of said estate; he stood by after consenting to the decree being entered in the chancery suit, which admitted clearly and explicitly that said estate was committed to said Robert Lucas, Jr., sheriff of Jefferson county, and saw a final decree entered against the said sheriff for his (Campbell’s) default, which sum so decreed the sheriff was compelled to pay.
Everybody was bound to take knowledge ' of the statute under which an estate might have been committed to the sheriff. In this case everything was done by the deputy in administering the estate, that could or would have been done, had the order actually been made committing the estate to the sheriff to be by him administered ; he evidently supposed such order had actually been made • the defendant, Locke, in his affidavit
For the foregoing reasons the judgment of the circuit court of Jefferson county rendered in this case on the 17th day of November, 1874, is reversed with costs to the plaintiff in error. And it appearing from the record, that a verdict ivas also rendered against Francis W. Drew, the only remaining defendant to the action who was before the court, for the same amount of money as ivas ascertained by the jury in their verdict against Locke, this Court proceeding to render such judgment on the said verdict as the court below should have rendered, it is considered by the Court, that the plaintiff, Robert Lucas Jr., recover of the defendants, John J. Locke and Francis W. Drew, $146.84, with interest thereon from the 2d day of November, 1874, and his costs by him about this suit expended.
JudgmeNT reversed.