Paxton v. Steckel

Sergeant, J. — The first question in this case arises upon the bill of exceptions taken by the plaintiff to the decision of the court below, that Wm. L. Sebring might testify to every fact of which he had a knowledge, and which knowledge he did not learn from sheriff Sleckel as his counsel. There does not appear to be any error in this. 95 We think there is no reason for saying, that the sheriff cannot have counsel in matters connected with his proceedings, or enjoy the same privilege that exists in other cases. The business of a sheriff is multifarious, intricate, and emphatically of a legal complexion; and it is not to be supposed he can always conduct it properly, without the aid of an adviser, to inform him of the law to which it is his duty to.conform. He ought, therefore, to be able to consult his counsel with the same freedom and privacy as other persons, and to be subject to the same rules. We think it clear, however, that the court erred in their charge to the jury in stating, (for such seems to be the tendency of the charge,) that to constitute trespass by the sheriff, it is necessary he should touch the property, or take it into possession, or do some act operating upon the body of the property, or cause it to be done; and that the sheriff’s return was only evidence against the defendant, that he took possession of the property attached, but not conclusive. In the first place, it is well established by the authorities cited, that the sheriff’s return in a cause is, as between the parties, conclusive against him, so that he cannot contradict it by parol evidence. In this suit, the return of Steckel was, therefore, conclusive evidence against him. In the next place, it is not necessary to constitute trespass by an officer who executes a writ of attachment on chattels, to prove any manual handling of the property, or taking them into possession. The levying of the attachment may be done without these acts, and the property be fully bound by it, and be in the officer’s power and possession, and the owner divested of the possession. Trespass de bonis asportatis against a sheriff is maintained by proof that he unlawfully exercised an authority over the chattels against the will, and to the exclusion of the owner, though there was no manual taking or -removal when he took them under process of law, and by virtue of his office. Miller v. Baker, 1 Metcalf, 27; Gibbs v. Chase, 10 Mass. 128. Judgment reversed, and venire facias de novo awarded.