Ross v. Fuller

12 Vt. 265 | Vt. | 1839

The opinion of the court was delivered by

Royce, J.

— The appointment of a special officer to make service of process is a judicial act, which can be exercised only by the authority signing the process. This is fully settled by the case of Beebe v. Steel, 2 Vt. R. 314, and others which have followed it. It must result that the deputation upon the original writ, in this instance, having been signed by the magistrate in blank, and afterwards, without his direction or knowledge, filled up by a third person, conferred no legal authority upon the defendant, Carpenter. He was|never appointed to serve the writ, and his proceedings under it were therefore unauthorized and void. Besides, the fact that the writ was merely signed in blank, when the supposed deputation was indorsed upon it, would render the deputation ineffectual and void, even had it been filled with the name of Carpenter by the justice himself. Kelly v. Paris, 10 Vt. R. 261. And this was not a mere ground of defence to the suit by way of abatement, but a radical defect, which the judgment by default did not cure. The plaintiff was, of course, entitled to recover, in this action, against the defendant, Carpenter.

It remains to consider the case in reference to the defendant, Fuller. It appears that he held the plaintiff’s note, which was not negotiable ; — that, at the plaintiffs request, he passed the note to one Smith, who had the plaintiff’s express consent that he might dispose of it to whomsoever he pleased ; — that Smith sold it to one Allen, who instituted a suit upon it, and caused the horse in question to be attached and taken away by Carpenter. The question is, whether Fuller, the original payeeiof the note, and whose name was necessarily used in the suit upon it, is liable for the trespass complained of

The principle, that, in trespass, all are liable who participate in the act, whether by aiding in it, or advising or assenting to it, will sometimes subject a person, as a trespasser, who has merely delegated an authority to be executed for his benefit. This is the ground upon which the cases cited from Wilson are sustained, and upon which the real party to a suit is usually made responsible for the acts of his attorney, and for those of ministerial officers employed in his service. But the case at bar is not within the spirit of this rule. The defendant, Fuller, was a nominal, but not a real party to these void proceedings. His previous sale of the note was a legal act, operating to transfer the interest in it for all collateral purposes ; for every purpose, indeed, except that of prosecuting a suit directly upon the note. The legal custody of the instrument belonged to the purchaser, as would the avails, when collected, or otherwise received. And his authority to use the name of Fuller, in suing upon the note, was a power to be executed for his own benefit, and over which Fuller had no control. Why, then, should he be answerable for this trespass, committed in his name, but without his co-operation or power of prevention ? To hold him liable, it must be assumed that the record, in the action upon the note, furnishes evidence which is legally conclusive that he did personally concur in the trespass, or had an interest to be promoted by it. But, since all this may be effectually disproved for other purposes, we think the evidence equally available for his protection in this instance. It is true, that, according to the decision in St. Albans v. Bush, the plaintiff of record in an unsuccessful suit, though it were brought without his privity or consent, -is conclusively fixed with the costs recovered therein by the other party. But that case evidently proceeds upon a ground too narrow to sustain the present. It does not affirm the conclusiveness of the record, for any purpose beyond that of enforcing the judgment itself. The case of Tichout v. Gilley has a much nearer resemblance to the present, and some of the reasons which appear, in the opinion of the court, would seem to go the length of supporting this action. In some important particulars, however, the two cases differ! In selling the note of Tichout to Taylor and Prentiss, there was an express stipulation contemplating a suit on the note, and Cilley regulated his responsibility in reference to it. He also turned out property upon the original writ, and, according to the report of the case, Tichout does not appear to have had notice that his note had ever been transferred. As several of these considerations appear to have entered into the grounds of that decision, we cannot regard it as. an authority governing the present case.

Judgment of the county court reversed.