Boynton v. Morrill

Ames, J. The argument for the defendants rested mainly upon the ground that their attorney had no authority to assume, on their behalf, any responsibility for the defence of the plaintiff in the suit against him, except for the act of making the attachments. Whatever force there may be in this view of the case, the objection to the ruling of the presiding judge lies deeper, and the charge was erroneous, even on the assumption that there was no such excess of authority on the part of their attorney. The jury were instructed that, if the defendants assumed the defence of the action against the attaching officer, they could not be permitted to go into any inquiry as to the grounds upon which the verdict was rendered. This ruling appears to take it for granted that the assumption of the defence implied, or carried with it, the obligation, not only to employ counsel and to incur the expenses of the defence, but also to pay all the damages which 7 might be in any event recovered. They had employed the plaintiff to make their attachments, and were interested in maintaining the validity of these attachments. To a certain extent they were bound, by the mere fact of placing their writs in his hands, to indemnify him against harm or damage incurred by him in serving them. They might well employ counsel and secure the attendance of witnesses for his defence in any suit brought against him for what he had done by virtue of these writs, and while acting in their behalf and for the purpose of securing or collecting the debts due to them respectively. But if the defence should prove unsuccessful, and the attaching officer should be held liable, for the reason that he had been guilty of illegal or unauthorized acts subsequent to their attachments, or for misconduct in the service of writs to which these defendants were not parties, or for the wrongful conversion of attached property or its proceeds to his own use, it would be unjust that they should beheld to indemnify him to such an extent. By assuming the defence, they do not put themselves unconditionally in his place. It may well be supposed that they would be taken by surprise, on finding that the case raised a question of official misconduct or personal dishonesty on his part. They could in no event be gainers by his misdeeds in the service of other writs, or in his wrongful appropriation of funds to his own use, and could hardly have intended to burden themselves with any such gratuitous responsibility. What he did for them, they were bound to defend, but he should bear the burden of his own misconduct himself, if any such there were. It appears to us therefore that the evidence offered by the defendants should have been admitted; and that if they could satisfy the jury that the grounds of the verdict in the former suit were such as they alleged, that fact would have an important bearing upon the present case. ¡Exceptions sustained.