Strong v. Bradley

13 Vt. 9 | Vt. | 1841

The opinion of the court was delivered by

Williams, Ch. J.

Two questions are made in this case. 1. Whether the evidence offered to prove the judgment against Wilson, was correctly received, and we are of opinion that it was not the appropriate evidence. Justices are required keeP records. In this case, the justice, Griswold, is still living, and there was no necessity of receiving any other evi-¿[ence than either the record of the judgment, or a certified copy thereof. The original record might be legitimate evidence, but it never should be used for that purpose on the trial of any issue which does not put the existence of the record directly in issue. Such records cannot go to the jury, and magistrates should not permit them to be taken from their custody, but give certified copies. In this case the papers produced were not the original record, but only the files and minutes from which a record was to be made. The court were wrong, therefore, in admitting them as evidence of the' judgment.

The second question is, whether the court charged the jury correctly as to the effect of the letter written by the attorney of the creditors to the deputy of the defendant ? The court charged the jury, after stating the general duty of a sheriff in regard to executions, “ that the effect of the letter of instructions from the attorney of the plaintiffs would not alter or change these duties and liabilities, unless it was shown that the defendant’s deputy acted under them, by communioating with the said attorney for further instructions in regard to the said execution, and that the court discovered no evidence to prove that any such communications were made.” The letter was calculated to induce the defendant’s deputy to believe that some discretionary power was committed to him, and the jury might have inferred, from the testimony, that he deviated from “the strait forward course,” and forbore to arrest Wilson when he first saw him, in consequence of the letter, and, if so, he should be excused for not arresting him at that time. Furthermore, there was evidence that, after this, the attorney for the plaintiffs and the sheriff had a consultation together, and the sheriff was directed to take a note payable in a year. This was evidence of some communication between the attorney for the plaintiffs and the defendant, and also evidence that the defendant was at liberty to deviate from the usual course. After this it appears that the sheriff’s deputy again went to see the debtor and could not find him, and returned the execution without service, and, inasmuch as he had seen the debtor when he first went after him, he could not make a regular non est return. The jury should have been instructed that if the deputy neglected to make the arrest in consequence of the letter of instruction which he received, the plaintiffs could not maintain this action. When a jail bond is taken, it has been held that if the creditor holds out any inducement to a debt- or to depart the liberties, he cannot maintain an action on the jail bond, and the same principle should apply to exonerate a sheriff, when any inducement is held out to his deputy to depart from the strict line of duty. The judgment of the county court is therefore reversed.