Town of Barnard v. Henry

The opinion of the court was delivered by Redfield, Ch. J. I. In regard to the propriety of allowing a review in this case, the words of the statute Chap. 28, § 17, exception 4, seem to be very explicit. Ho review is to be allowed, in any suit brought against a sheriff, &c., for not executing, or duly returning a writ of execution — when a receipt was given by such officer, at the time of delivery thereof. The receipt is produced, and seems to have been given at the time. Indeed, that portion of the statute, in regard to time, seems to apply chiefly to a case where a receipt is demanded and not given. There is nothing in the statute requiring the action to be, in terms, founded upon the receipt.. That is so in regard to a suit brought by an officer, for goods attached, and receipted to him. But nothing of the kind is found in this exception. This suit is brought in terms, for not executing, or duly returning the execution. II. In regard to the testimony offered upon the trial, by defendant, and rejected, although coming from different witnesses, it all seems to amount to the same thing. 1. That the town agent, Hiram Aiken, agreed at different times to control the execution, and look to Darnel Aiken for payment. 2. That he admitted at different times, and to different persons, that he had controlled it. [294] This is offered in connexion with proof, that the defendant having obtained security of one of the debtors on said execution, gave it up to him. AU this, no doubt, tends very strongly to convince the mind morally, that the defendant supposed he was exonerated, and so does the mere fact, that the defendant gave up the securities, but that does not help the case. The question recurs: Is this competent legal proof of that fact? Does it have any legal tendency to prove the issue, that the agent did in fact make such a contract ? We think it does not. There always will be upon this subject, as upon all others, extreme cases, which if followed, would break down the principle of the rule, upon which they profess to go. But extremes prove nothing as to the rule. The principle must be maintained. The cases upon this subject, many of them the same cited in the present argument, are commented upon somewhat, in the opinion of the court, in Underwood v. Hart, 23 Vt. 120. The only principle upon which the declarations of an agent are ever admissible, is that, being made in the transaction of the business of the principal, they thus become his, and bind him. Yery obviously, the agreement of the agent to control the execution, being merely executory, and upon no consideration, is not a binding contract upon the town, and has no legal tendency to show that he did, in fact, control it. That is altogether a non sequitur. So too, his mere naked declaration, that he had controlled the execution. This is no act within the scope of his agency. It is nothing binding upon the town, unless he did in fact make a binding contract to that effect. And we are as far from that as ever. The force of the declaration, as tending to prove the desired fact of control, depends, not upon the authority of the agent, but upon his veracity ; and as such, is a mere medium of proof, is hearsay, and nothing else. It was urged, that these declarations of the agent were admissible, to show that the witness had made declarations out of court, not consistent with his testimony. But Hiram Aiken was not offered by the plaintiffs to prove that he did control the execution. If he had been, and had so testified, this testimony would no doubt have been competent to contradict him. But upon this point he was made a witness by the defendant, not by way of cross exami [295] nation, in regard to matters he had testified to, on the part of the plaintiffs, but upon a new and independent matter altogether. It would not therefore come fairly within the rule of impeaching an adversary witness, by showing that he had made different declarations out of court. It is noticeable too, in this case, that the witness testified to nothing, just nothing upon this point, so that his declarations offered by defendant were not needed to contradict the testimony of the agent, but to extend and eke it out. We do not find it necessary to pass upon the question, how far a town agent has authority to control an execution, after the sheriff is fixed with a liability for not collecting it. Judgment affirmed.