30 Vt. 697 | Vt. | 1858
The opinion of the court was delivered by
The defendant was. a sheriff of Caledonia county. The plaintiff delivei’ed a certified execution in his favor against one Eldzüdge, to Charles S. Martin, one of the defendant’s deputies, to collect. The plaintiff resided in Craftsbuzy, and Eldridge and Martin in Danville. Eldridge agreed with Bliss N. Davis, Esq.,
The defendant insists that the driver told Martin that Mason said he might take Davis’ note without adding the qualification “negotiable,” and that it should have been left for the jury to say what direction was delivered by the driver; but the case states and the minutes of the judge show, that the driver “ told Martin just what Mason said to him.” It is true that in the preceding sentence of his testimony he omitted to use the word “ negotiable;” yet the whole testimony, taken together, does not tend to show any message delivered to the deputy other than the very one the driver received from the plaintiff. As the court, considering the evidence in its aspect the most favorable to the defendant, could not legally find any that tended to support the defence, it might well proceed to treat the facts as settled, and to instruct the jury as to their legal result.
The important question in the case is as to the effect of the plaintiff’s answer to Martin’s inquiry upon the sheriff’s liability for Martin’s default. The defendant claims that this answer was such an interference, by the plaintiff, with the duty of the deputy, to proceed with the execution according to law, as exonerates the sheriff from liability for the deputy’s default.
The sheriff is liable for all the acts and neglects of his deputy,
In such case there seems no good reason why, if he omit his legal duty, without securing the performance of the specific terms upon which he is authorized to omit it, he should not bind both himself and his principal (the sheriff) by his default. In such case no exercise of control, no interference, no act procuring delay or inducing the deputy to omit his duty, was fairly imputable to the creditor. On the contrary, it is obvious that all parties understood that a strict compliance with the specific terms imposed by the creditor, a literal performance of the very act required by him, was an indispensable condition precedent to the suspension of the proceedings upon the execution.
Such transactions between the officer and the creditor, as they vest no discretion in the otficer, as they do not suspend the due course of proceedings upon the execution till the performance of the specific condition, are clearly distinguishable, in principle, from the case of Strongs v. Bradley. Nor can it be urged that such precise and limited authority for the performance of a specific act may mislead the deputy. He is bound to the exercise of reasonable judgment and diligence in the construction of such instructions, and in the performance of his duties under them; and the sheriff is bound to appoint officers competent to exercise such judgment and diligence. If they fail to do so, they fail in discharging the duties imposed on them. They are bound to take the usual course with the execution until the act is done which authorizes them to suspend proceeding under the execution; if they suspend before such act is done, or when some other unauthorized act is done, they are delinquent in official duty. They are not bound to deviate from the line of legal process in such cases; they may, and if they have the slightest doubt as to their own safety in the matter
The judgment of the county court is affirmed.