Berry v. Hart

Hallett, C. J. The issues in this case were not the same as in the case of Deitsch v. Hart et al., post, 300, decided at this term, although appellant’s evidence was substantially the same as that offered by Deitsch. In that case, the special plea was found to be substantially defective, and, therefore, the justification failed. In this case, appellant’s plea, although, perhaps, it would have been obnoxious to demurrer, is, in our opinion, sufficient after issue joined. It is said, that appellant should have alleged that the writ of attachment had been returned, and such is the rule [253] when an officer attempts to justify under a writ of this kind. Davis v. Bush, 4 Blackf. 330. But we have found no case in which this rule has been applied to the plaintiff in the writ, and, upon principle, there appears to be no reason for extending it to him. It is the duty of the officer to return the process at the proper time, and he may well be required to perfect his levy by making return, if, at the time of pleading, the return day has passed. The plaintiff in the suit, however, ought not to be charged on account of an omission of the officer-occurring after the alleged trespass was committed. If appellant is guilty of a trespass, he became so by suing out the attachment and directing it to be levied, and th'e circumstance that the officer failed in his duty after the levy will not affect his rights, unless he was in some way responsible for the omission. In Middleton v. Price, 2 Strange, 1184, the plaintiff in the writ and the officer jointly justified. “And it not being shown that any return was made, the court held, that the officer was a trespasser ab initio, and that the plaintiff, by joining with him in the plea, is equally affected by the defect of it.” If they had pleaded separately, probably' the plaintiff would not have been held liable for the officer’s default. The plea being sufficient after issue joined, the question most discussed at the bar is the admissibility of the evidence offered in the court below to show the official character of the sheriff. It is conceded that the acts of officers defacto are valid, when they concern the public or the rights of third persons, who have an interest in the act done. People v. Collins, 7 Johns. 549. The appellant was in no way connected with the sheriff, except that he procured his services in levying the writ of attachment. Desiring to enforce payment of his debt against Buell, appellant sued out process, and, if he found Cozens performing the duties of sheriff, and generally recognized as such officer, we think that he might accept his services without further inquiry as to the tenure by which the office was held. Certainly no question as to the [254] validity of the levy, predicated upon Cozens’ title to the office, can arise between Buell and appellant, and, a fortiori, no such question ought to be allowed between appellant and appellees. The circumstance, that Cozens and appellant were sued jointly, can make no difference since they severed in pleading. Whatever rule may be enforced against an officer justifying under process, it seems to be sufficient for third persons to show that be is an officer de facto, and the evidence offered by appellant tended to prove this fact, and was, therefore, improperly rejected. From this it follows, that the affidavit in attachment and the writ and return were also excluded improperly. And here I might pause in the discussion of this cause, but for the suggestion of counsel that the verdict must have been the same if all the evidence excluded upon the trial below had been admitted. This suggestion rests upon an alleged absence of proof upon two points in appellant’s defense. In the special plea the ground upon which the attachment was issued is set out, and it is claimed that there is no evidence to support it. But we think that the allegation itself is not material in this action and must be disregarded. In Damon v. Bryant, 2 Pick. 411, the reason given for requiring an officer to prove a debt in cases of this kind is, that it may appear that he is acting for a creditor because it is only in that character that he can question the vendee’s title to the goods. ' It is plain that a creditor, when justifying a seizure out of the hands of a stranger, must show his debt upon the same reason. Proof of the relation of debtor and creditor establishes the right of the creditor to proceed against the property of the debtor wherever it may be found, but whether he shall proceed by attachment or ordinary summons is a question of no importance to any other than the parties to the suit. If the debtor should bring trespass against the creditor, there would be strong reason for requiring the creditor to show that there was cause for issuing the attachment because the debtor may question the remedy as well as the right. But a stranger to the process is in a different [255] position. As to Mm it is sufficient for the creditor to show his debt, and that he has resorted to legal process for its collection. It is also urged that appellant failed to show that the sale from Buell to appellees was fraudulent, and therefore the title of the latter parties must be held good. It is to be observed, however, that appellant was not confined to that method of showing title in Buell. It seems that Buell was a merchant, and that he went east to buy goods, and visit his friends, leaving Sherman, his agent, in charge of his business, and that during his absence Sherman sold his whole stock of goods to appellees for the purpose of paying Buell’s indebtedness to them. The value of the goods was upwards of $10,000, and the indebtedness of Buell to appellees was less than $7,000. It is difficult to maintain the authority of the agent to make this sale, for if it is conceded that Sherman had authority to sell the whole stock of goods in mass at two-thirds of their value, which is all that can be claimed upon the testimony, there is nothing to show that he had any authority whatever to pay debts. Sherman says that Buell gave him full charge of the business and told him to do the best he could. Giving ■ to this authority the utmost latitude, Sherman had power to sell goods and perhaps pay current expenses, and the sale of the whole stock to a single creditor to satisfy one debt was entirely beyond the scope of his employment. Nash v. Drew, 5 Cush. 422 ; Swett v. Brown, 5 Pick. 178; Beals v. Allen, 18 Johns. 865. Appellant had the right to have this question submitted to the jury under proper instructions, but he could not do so except in connection with the other evidence in the case. In this view it was not necessary that he should rely upon fraud in the sale from Buell to appellees, because if the jury should find that Sherman had no authority to pay the debt. to appellees, and there had been no ratification of the act, the title was still in Buell and the property was subject to attachment under a writ running against him. That appellant was in a position to question the sale from Buell to [256] appellee, upon the insufficiency of Sherman’s authority to make it, is decided in the case of Beals v. Allen, cited above. It seems that a stranger, who seeks to attack a sale upon the want of authority in the agent by whom it was made, must show a debt and legal process against the principal in the’ same manner as one who seeks to avoid a sale under the statute of frauds, and, for the same reason, a mere stranger cannot be allowed to interfere between principal and agent. Jackson v. Van Dalfsen, 5 Johns. 44. It was necessary for appellant to show privity between himself and Buell before he could attack the sale made by Sherman, and for this purpose the evidence of indebtedness and process, and the official character of the sheriff was material to his defense. Upon this ground, also, this case is to be distinguished from that of Dietsch v. Hart et al., in which there was no sufficient plea of justification under which the appellant could attack the sale from Buell. There are other questions in this record which probably will not arise in another trial of the cause, and, therefore, they are not noticed. The judgment of the district court is reversed, with costs, and the cause is remanded for a new trial. Reversed.