14 Vt. 55 | Vt. | 1842
The opinion of the court was delivered by
1. We think the court erred in instructing the jury, that th.e letter, written by plaintiffs’ attorney to'the defendent’s deputy, was “ equivocal.” We think it did give the officer an unlimited discretion, in the management of the collection of the execution, adding, indeed the request that if it became necessary, in the opinion of the officer, “ to pursue any other course than the straight forward one,” they would wish to be informed ; and all this, when no discretion, whatever, was intrusted to the officer ! We cannot think this the fair construction of the letter. And the jury
2. We think the court erred in not instructing the jury that the defendant was no way liable for the manner in which his deputy executed a discretion, intrusted to him by the creditor in the execution. If the creditor obtain from the sheriff the appointment of a special deputy, for the purpose of collecting his execution, there is no liability, on the part of the sheriff, for any default of such deputy. He is the agent of the party, and himself alone liable for such degree of diligence as the particular nature of his retainer requires. So, too, by.the English decisions, if the party select a particular deputy, who acts under his instructions, he thus makes him, pro hac vice, a special deputy. Ford v. Leche, 33 C. L. 184, and cases there cited. Doe v. Trye, 35 C. L. 234. Porter v. Viner, 18 Com. L. 177, in notis.
We intimated last term, in this same case, that we were strongly inclined to adopt this view of the law, as being applicable to the subject of sheriffs’ liability in this state. The further discussion and consideration of the subject has but served to confirm this impression. If a discretion is intrusted to the deputy, under which he proceeds to act, we cannot consider the sheriff liable for any of his acts, or omissions, within the legitimate range of that discretion.
The discretion in this case was unlimited. Whatever then, the officer did, should be referred to that discretion, unless indeed it could be shown that the officer did not act under his instructions, which could only be done by positive proof, showing that he was not, in any manner or degree whatever, influenced by such instructions. For although he might have been mainly influenced by other considerations, yet if he was in any degree influenced by these special instructions, the defendant is exonerated from all liability, on account of his conduct. We see no testimony in the case tending to show he was not influenced by these instructions. And the burden of showing this rests with the plaintiff, for the instructions are admitted. And now unless some irre
The charge of the court to the jury, in regard to the duty of the officer to return the execution non est inventus, was, we think, erroneous. The jury were told that if the officer had not seen the debtor before he absconded, so that he could, consistently with the facts, have returned the execution non est inventus, it was his duty to have done so. Now it could hardly be said that the deputy, being himself bail, would be under any greater obligation to make such return than if some other one had been bail. And in this latter case, if the officer, but for the instructions, would have arrested the debtor, but under them, finding upon proper inquiry, that he was destitute of all means, did not therefore go to see him, even, until he learned he had absconded he could not then, consistently with good faith, make a non est inventus return. So that, upon this point, the defendant could not be liable, except under the same limitations as in the former, i. e. that it should be substantially and fully shown that these instructions did in no sense induce the deputy to pursue a different course, in that respect, from what he otherwise would have done.
Judgment reversed and new trial.