Willard v. Goodrich

Aldis, J. When a party or his attorney assumes to give special instructions to an officer, in regard to the execution of process in his hands, differing from his legal duty, it is held that the officer is exonerated from his legal liability. The reason of this is, that he is influenced by such instructions to omit the performance of his plain official duty. He ceases to be a public officer, as to the business so entrusted to him, and becomes a private agent. In Strong v. Bradley, 14 Vt. 55, a leading case on this subject, and in which the law was carefully expressed, it is said, “if the officer was in any degree influenced by these special instructions, he is exonerated from all liability on account of his conduct.” “ The burden rests on the plaintiff to show that the officer was not influenced by such special instructions.” [600] There can be no doubt that the attorney has full power to direct the sheriff as- to the time and manner of enforcing an execution; Gorham v. Gale, 7 Cow. 739. He may direct him to proceed or to suspend proceeding. He is vested with a large and liberal discretion in everything pertaining to the collection of the debt. He may not discharge it without satisfaction, but short of that in everything that pertains to the selection of remedies and control of process, he has, as attorney, the most ample authority. This is required by the necessary confidence reposed in him by his client, by the client’s ignorance in regard to legal rights and remedies, and by his pecuniary interests. The case of Jenny v. Desdernier, 20 Maine 183, collects a very large number of decided cases, and fully sustains these views. The attorney in this case had an execution against Church, the sheriff, upon a judgment recovered for official neglect. He had another execution in favor of Church, issued on a judgment rendered against the receptor for his refusal to deliver up property attached on the debt upon which Church had been sued for neglect. Thus Church stood substantially in the position of a surety for the debt. The attorney, on delivering the executions to the defendant, who was a constable, in reply to an inquiry on the subject, said to him, “ I have no directions to give about the executions; you may go to Mr. Church for directions.” What is the reasonable construction to be put on these words ? What must the constable have fairly understood them to mean ? Clearly, that he was not to proceed in the straightforward line of his official duty in collecting the execution, unless the debtor directed him to do so ; that he was to give time if the debtor wished; to omit to make a return if he requested; to proceed or to suspend proceedings as the debtor might desire. It was not fairly to be construed as an authority for him to discharge the execution without satisfaction ; he would not understand it to mean that; but it was to follow the debtor’s directions in regard to collecting or omitting to collect it according to law. The collection of the debt being ultimately safe, and Church but a surety, such directions would not be deemed unusual or [601] extraordinary. It is not very uncommon for the surety to sue in the name of his creditor, and to control the suit and execution, for the purpose of collecting the debt of his principal. Goodrich could not tell what understanding existed between Willard and Church, or Beckwith and Church. I-Ie might well suppose the attorney understood his business and the scope of his authority, and the true interests of his client. Practically it seems to us that it would have been a most extraordinary thing for Goodrich to say to the attorney “ I can not follow these directions, for you are delegating to the judgment debtor the authority specially reposed in you.” To require Goodrich to take such a view of the attorney’s directions seems to us unreasonable. On the contrary, we should expect him to do as the attorney directed. He could not prevent such instructions being followed by another officer, if not by him. He must have known that the only effect of his refusal would be, either that another officer would be entrusted with the execution, or that Beckwith would himself consult Church and give directions personally. The rule that an attorney must in all cases ascertain and give directions personally, instead of referring the officer to third persons for instructions, if established, would be highly inconvenient, if not impracticable. He is frequently obliged to rely on others, and in his discretion may refer an officer to others ; to the judgment debtor as well as others, when in his judgment he thinks or knows his client’s interests or wishes will be promoted. And it would be productive of great mischief if the officer were to assume to go behind the attorney, and to step in between the attorney and the client and attempt in his own discretion to judge of' and protect the client’s interests in the collection of debts. We think this case can not be regarded' as falling within the maxim, “ delegatus not potest delegare,” but simply as one where an attorney gave directions, which, fairly understood, must have influenced the officer to omit the performance of his strict official duties, and so would exonerate him. Another point has. been made, that when the date of the execution was altered, the execution became a new one, an alias, [602] and the directions first given by Beckwith ceased to apply to the new execution. This point was not raised in the court below. The ruling of the court that the instructions upon which Goodrich relied for a defence would not exonerate him, put an end to the case and made it needless for counsel to raise or the court to decide the question here presented. As the court did not pass upon it, we can not suppose that the testimony applicable to it is fully presented in the exceptions. Even as it is, we think it might have been presented to the jury to decide whether the instructions were not understood by both parties to apply to the altered as well as to the original execution. But as this point could not have been raised below, and is not noted in the exceptions, and as the evi^ dence connected with it can not be presumed to be fully stated, we think it would be improper for us to pass upon it here. The judgment of the county court is reversed,