Rollins v. State ex rel. Duvall

13 Mo. 437 | Mo. | 1850

NAPTON, J.

The question which, in our judgment, is decisive of this case, is whether the sheriff in the execution of the writ of venditioni e<ej>onas was acting colore officii, or was he the mere agent of the plaintiffs.

The cases lipón this subject, most of which will be found cited in the briefs, clearly show that where an officer departs from his line of duty pointed out by the law, at the promptings of the plaintiff, his securities are discharged. The responsibility of an officer bound by law to sell for cash and cash only, is materially different from a responsibility for credit sales. The risk is greater. The case of Kimball & Co. v. Perry, 15 Verm. is a sensible commentary upon this distinction, and establishes that if such sales are undertaken at the instance of the creditor or the creditor’s attorney, the securities of the officer are not responsible.

I think most, if not all the cases cited, where the courts have held the securities discharged, will be found cases where there has been an interference by the plaintiffs in the writs. In such cases, the party, by directing the officer to proceed in some other way than that prescribed by the law, makes the officer his agent, and the securities are no longer liable for his acts. The practice and propriety of this is so manifest as to need no illustration.

On the other hand it seems to be equally well settled, and as consonant to justice and policy, that where the officer professes to act under color of Ms office, and under the sanction of a writ, the responsibility of his securities for any malfeasance in its execution is not discharged by reason of defects or errors or total illegality in the process. It would be strange if the law were otherwise. Where a court has jurisdiction of the action, the officers are not responsible for errors in the process. If the officer proceeds on the process and treats it as valid, he is bound to pay the money he collects under it, and the money being received by him, colore officii, his sureties are liable for its misapplication. Walden v. Davidson, 15 Wend. 575.

The question is in this case as in others of a similar character, was the act official or personal ?' It is clear that there was no departure'from the mandates ■of the Writ and no interference on the part of the plaintiffs after its issuance. The sheriff did not profess to sell by virtue of any directions from the plaintiff, but in obedience to the order of the writ of venditioni. The fact that this order was erroneous, and might perhaps have been disregarded, cannot alter the case, The application for the writ is no such interference of the plaintiffs as makes the officer their agent. All writs issue on the application of some one, and the machinery of the Jaw must be put in motion whenever it acts at all. The writ was issued on the order made by a court having jurisdiction over the subject-matter. It is neither justice or sound policy that private individuals should suffer by the blunders of the officers of the law, either judicial or ministerial. We cannot regard the writ as a mere nullity. Would the sheriff have been liable as a trespasser for proceeding under it ? We think not. Judgment affirmed.