3 N.H. 408 | Superior Court of New Hampshire | 1826
delivered the opinion of the court.
The defendant claims a new trial, in this case, on two grounds. In the first place, he contends, that the attachment made by the plaintiff, was void, and, therefore, gave him no right to hold the goods. In the second place, he urges, that, admitting the attachment to have been valid, a general deputy of the sheriff had a right to take away the goods, and hold them, by virtue of other legal process, against the same debtor, subject to the attachment made by the plaintiff, who was only a special deputy.
It is said, that the attachment, made by the plaintiff, was void, for two reasons; 1st, because the plaintiff was an infant, and, by law, incapable of exercising the office of a
The first question, then, to be decided is, whether the plaintiff,, being an infant, was, by law, capable of discharging the duties, which he was, in this instance, deputed to perform ? It is not necessary, in this case, to decide whether he was capable of doing ail the duties of a general depuíy ; his authority being special and limited, it is enough for this case to decide the question, whether he was, by law, capable of doing the particular acts, which his commission authorized him to perform ?
The real question, then, involved in this point, is, whether an infant is, by law, capable of discharging the duties of a deputy of the sheriff, specially deputed to serve and return a particular writ of attachment ?
There are provisions in our constitutions, which declare persons, of certain ages, incapable of holding certain offices. These provisions have been adopted, because it has been generally supposed to be contrary to sound public policy to commit particular offices to the inexperience of the young, or to the decay of faculties, which so frequently attends the last years of the aged. By the constitution of the United States, no person can be president, who has not attained the age of thirty-five years ; nor a senator, who is under the age of thirty years ; nor a representative in Congress, until of the age of twenty-five years. And by the constitution of this state, it is provided, that no person shall be capable of being-elected a senator, nor be eligible to the office of governor, who is not of the age of thirty years. It is also further declared by the same constitution, that “ no person shall hold “ the office of judge of any court, or judge of probate, or “ sheriff of any county, after he has attained the age of “ seventy years.”
And some of our statutes deny to persons, of certain ages, the exercise of particular powers and privileges, which are granted to others. Thus, by the statute of June 23, 1815, the right of voting in any public town meeting in any matter, that may come before a town, is given only to persons of the age of twenty-one years. So, by the statute of July 2,1822,
Nor were the imbecility and inexperience of early life disregarded by the common law. For it seems always to have been held, that an infant could not be a juror. Coke Litt. 157, a.—Littleton, sec 259.
So he could not be an attorney of a court; (Coke Lilt, 128, a.) nor administrator of an estate; (Lovelass 5—Godolphin 102,) nor could he act as executor, until he arrived at the age of seventeen years. Lovelass 161.—Godolphin 103.
So it was always held, that an infant could not execute the office of a judge. Croke Eliz. 636, Scambler vs. Water.—Coke Litt. 3, b. and note 15.—T. Jones 127,—2 Lev. 245.
It has also been decided, that an infant could not hold the office of clerk of a court, where it was part of the duty of the office to receive the money of the suitors. 5 B. & A. 81, Claridge vs. Evelyn.
But, notwithstanding these disabilities, there are many-th ings, which can be legally done by an infant. He is made, by statute, liable to do duly in the militia at the age of eighteen years.
By the common laws an infant was capable of dise,]wr-;i..g the duties of an executor at the age of seventeen years. 5 Coke 29, Pigot's case.
It is also well settled, that females of the age of twelve, and males of the age of fourteen years, may dispose of personal property by will. Bingham on Infancy 77.—1 Pickering 239, Deane vs. Littlefield.
It has long been held, that infants were capable of holding certain ministerial offices. Cro. Car. 555, Young vs. Fowler.—2 Roll. Ab. 153.—Com. Dig. “ Officer,” B. 3.—Cowper 220, Rex vs. Carter.—Cro. Car. 279, Young vs. Stoell.
In England, the office of sheriff was in some counties formerly hereditary, and consequently might have descended to an infant. 1 Bl. Com. 339.—Cro. Car. 556.-9 Coke 97.
So an infant may be, it seems, a captain in the army. 8 D. & E. 578, Hands vs. Slaney. And it was held, that an infant might be an attorney to deliver seisin ; because the act was merely ministerial. Co. Litt. 52, a. and note 332.
Upon a thorough examination of the adjudged cases, which bear upon the question we are now considering, we are satisfied, that the principle, they establish, is, that some offices can, and some cannot, be held by infants. Offices, where judgment, and discretion, and experience are essentially necessary to the proper discharge of the duties they impose, are not to be entrusted in the hands of infants. But they may hold offices, which are merely ministerial, and which require nothing more than skill and diligence.
The plaintiff, in this case, was deputed to serve and return a writ. The service of the writ required an arrest of the body, or an attachment of the goods of the debtor. The return required nothing more than to send the writ to the court, when and where it was returnable, with a true statement upon it of his doings. The service and return seem, therefore, to be acts as merely ministerial, as any that can be conceived.
We are not aware, that the appointment of an infant in this instance could in any way have been detrimental to the public. Had the deputy, by virtue of the writ, arrested the body of a stranger, or taken the goods of a third person, the sheriff might have been compelled to pay all damages, in an action of trespass. 3 Wils 309, Saunderson vs. Baker.—1 Mass. Rep. 530, Grinnel vs. Phillips.—17 ditto 244, Campbell vs. Phelps.—Doug. 40, Ackworth vs. Kempe.—2 W. Black. 832.—Hammond N. P. 82.
Nt>r was the debtor without ample security for any injury, he might sustain, from the acts or from the negligence of the deputy. Nothing can be more unquestionable, than that the sheriff stands responsible for his deputies in both these respects.
With regard to the deputy himself, there seems to hare been nothing in the nature of the duties, he was deputed to perform, which subjected him to hazards, to which an infant
For these reasons, we are of opinion, that the attachment made by the plaintiff cannot be held to be void on the ground, that he was incapable of holding the office of a special deputy in this instance.
But it is also contended, that the attachment was void, because the plaintiff was not duly commissioned, and sworn, as a special deputy. Whether this objection is well founded in fact, it is unnecessary to inquire in this case. For vve are well satisfied, that this defendant is not in a situation to question the regularity of the appointment. The commission, which the plaintiff received, and the oath which he took, were clearly sufficient to make him an officer defacto, and to shew, that he was not a mere usurper ; and it ¡swell settled, that the acts of an officer de jacto bind all strangers, and that his authority can be questioned by those only, whose persons or whose property are directly affected by his acts. 10 Mass. Rep. 301.-10 Mod. 288.—1 Hawk. P. C. B 1, cap. 8, sec 3.—9 Johns. 135, M'Intry vs. Tanner.—2 N. H. Rep. 202. Johnson vs. Wilson.—1 Salk. 96.—Moor 112, 606, Costard vs. Wingate.—10 Mod. 64.—15 Mass. Rep 170.—Cro James 552, O'Brian vs. Knivan.—Cro. Eliz. 699, Harris vs. Jays.—Andrews 163, The King vs. Lisle.—2 Strange 1090, S C.—7 Johns. 549, The People vs. Collins.—15 Mass. Rep. 180.—2 Mod. Rep. 193, Ipsley vs. Turk.—2 Lev. 184, S. C.—T. Jones 81, S. C.—9 Mass. Rep. 231, Fowler vs. Bebee.—13 East 55.
Neither the property, nor the person of this defendant, have been directly affected by the acts of the officer. He is a stranger to the process, under which the goods were taken, and comes in voluntarily to question the validity of an attachment of another’s goods. It is most clearly enough to make the attachment valid, as respects him. that the person, who made it, was a deputy de facto, and not a mere, usurper.
Being thus of opinion, as we are, that the attachment was legal, it becomes necessary to determine the question, whether the defendant had a right, notwithstanding, to take away the goods, and hold them, subject to the first attachment ?
We consider it as settled in this state, that goods, which are held by virtue of a subsisting attachment, by one general deputy of the sheriff, cannot be legally attached by another deputy. 2 N. H. Rep. 66, Odiorne vs. Colley. But an attempt has been made to distinguish the case now before us from that case, by the circumstance, that the deputy, who in this case made the first attachment, was only a special deputy, and had only authority to serve the writ, by which he made that attachment. Whereas, when an attachment of goods is made by a general deputy, he has authority to receive other writs, and make other attachments, subject to the first ; which cannot be done by a special deputy. We have thought, that this circumstance deserved consideration ; but on the whole we have come to the conclusion, that it cannot be a proper foundation for an exception to the general rule. For it appears, upon examination, that the rule is founded, not upon the circumstance, that a second attachment may be made by the same officer, but upon the absurdity and inconvenience that must ensue, if, when one officer has the legal possession of goods, which are already in the custody of the law, another officer might be permitted to disturb that possession. 5 Mass. Rep. 271, Watson vs. Todd.—13 ditto 114, Vinton vs. Bradford.—14 ditto 269, Thompson vs. Marsh.—16 ditto 420, Benny vs. Warren.
At common law, goods seized on an execution could not be seized by the same sheriff on another'execution. 1 Show. 169, Bachurst vs. Clinkard. But we permit the same officer to make a second attachment, and to seize the same goods, on a second execution ; and this is the utmost extent, to which the rule has ever been carried ; and we think this the utmost extent, to which it can ever be carried with safety and convenience.
