Haven v. Snow

Wilde J. delivered the opinion of the Court. The defendant is charged with the neglect or breach of his official duty, he being a deputy sheriff, in not duly serving a- certain writ in favor of the plaintiff, by the means of which he has lost his debt. The writ was handed to the defendant by the plaintiff’s attorney on the 19th day of November, 1830, with directions to serve it by laying an attachment on the debtor’s real estate. But it appears by the defendant’s return, that the attachment was not invade until the 19th day of December following, and that in the mean time, viz. on the 22d day of November, the same estate attached on the plaintiff’s writ was attached on a writ in favor of Messrs. Carnes against the same debtor, and that they afterwards levied their execution on the whole of the lands levied on by the plaintiff. It appears, however, if it is competent for the defendant to show the fact, that the attachment on the plaintiff’s writ was in truth made on the 19th of November, instead of the 19th of December, and that the return was amended accordingly. The question is, whether the defendant is liable for the mistake made in his return, or in other words, whether the Messrs. Carnes had a right to hold the lands attached and levied on against the plaintiff. The plaintiff’s counsel rely on the case of Emerson v. Upton, 9 Pick. 167, which in many respects bears a close resemblance to the case at bar. But these cases differ in two important particulars. In the first place, in the case of Emerson v. Upton there was no written minute, or any other document, to amend by, and t'nts is noticed by the late chief justice as a material circumstance to show the danger of allowing an amendment to operate in that case. He observes “ that the officer should at least make a minute of his doings at the very moment when the act is to have its legal operation, and not, after months have elapsed, be permitted to retrace his steps, and change the whole effect of his proceedings, as apparent by his official [32] return.” The same difficulty prevented the allowance of an amendment of the officer’s return in Thatcher et al. v. Miller, 13 Mass. R. 270. “In the cases cited,” it is said, “ where amendments have been permitted, there was something on the record, by which the correction could be made ; and in such cases there can be no difficulty.” The same pant is noticed in Means v. Osgood, 7 Greenl. 146. In the present case there is a memorandum of the time of the attachment, in the handwriting of the defendant, and signed with the initials of his name, made at the very moment of the attachment, and in presence, undoubtedly, of the plaintiff’s attorney, so that there can be no possible doubt of the verity of the amended return. It has been argued that the amendment makes no substantial difference ; that the memorandum of the attachment, appearing on the writ, may be considered as a part of the return ; and that it sufficiently appeared before the amendment, at what time the attachment was made. Without deciding this point, it is sufficient to say that the memorandum fully justifies the amendment, and that this case is to be decided by the facts appearing by the amended return. 2. The other circumstance by which this - case is distinguished from that of Emerson v. Upton is perhaps not less important. The demandant in that case had no notice of the attachment set up against him before he recorded his mortgage deed. In the present case the Messrs. Carnes had constructive notice of the plaintiff’s attachment before suing out their writ. The plaintiff’s attorney was also employed by them, and he had sufficient notice of the plaintiff’s attachment. He directed the order of the attachments, and he could have no reason to doubt that the plaintiff’s attachment had been made as directed. Now it is a well established principle, that notice to an agent or attorney is presumptive notice to the party himself. 2 Fonbl. 153. As where all the securities were transmitted by the same scrivener, notice to him is notice to all the parties. Brotherton v. Hatt, 2 Vern. 574. So if A purchases in the name of B, with knowledge of a prior incumbrance, and B pays the purchase money, without notice of the incumbrance, yet he shall [33] be affected with the notice to A, because B, by approving of A’s conduct, made him his agent ab initio. Jennings v. Moore et al., 2 Vern. 609. This case is doubted by Lord Hardwicke in the case of Le Neve v. Le Neve, 3 Atk. 649, but he fully admits the general principle. There may be cases where a party would not be bound by the knowledge of facts possessed by an agent or attorney, as where such facts had come to his knowledge a long time before he was engaged to act as agent or attorney, or under circumstances which would warrant a presumption that he had forgot the facts. But in the present case the attorney of Messrs. Carnes was the attorney of all the attaching creditors ; he acted with full knowledge of all the facts ; and directed the order of the attachments. If he had attempted to give an undue preference to one of the creditors, or to take advantage of a slip by the officer, it would have been a fraudulent attempt, of which the party would not be permitted to avail himself. Under these circumstances notice to the attorney is sufficient, and equivalent to notice to the party himself. It is true there was in fact in this case no intention on the part of the attorney, at the time of ordering the attachment in favor of Messrs. Carnes, to take any undue advantage of the officer’s mistake, for it had not then happened ; but it is equally against good faith for the party to take any such advantage now. „ We think therefore the Messrs. Carnes have no right to object to the amendment of the officer’s return, as they will not thereby be deprived of any benefit intended to be secured to them at the time of the attachment. The cases cited as to amendments of writs have but a. slight bearing ; but there is a remark made in Emerson v. Upton which may.require some explanation. It is there said, that “ it will be found on examination of the cases in which amendments of writs have been granted, that the effect of them, when any change has been made, has been limited, to the parties to the suit in which the amendment is granted.” It must not be inferred from this remark that all amendments are to be thus limited, for it is clear, we think, that amendments in form merely will not dissolve an attrcbment so as to let in subsequently attaching creditors, or discharge bail. [34] To have this effect the amendment must be such as may let in some new demand, or new cause of action.- In respect to Cooke’s mortgage it is clear that his claim cannot affect the present action, for he cannot hold against the attachment and levy of Messrs. Carnes, and it is to him immaterial whether their title or the plaintiff’s eventually prevails. Plaintiff nonsuit.