Clough v. Monroe

Fowler, J. It has been ingeniously argued by the defendant’s counsel, that this action cannot be maintained, by reason of the inefficiency and defectiveness of the declaration, in not setting forth with distinctness what part of the return is false and in what particulars; in not describing correctly the record and proceedings undertaken to be set out, and in not alleging with sufficient particularity the damage sustained in consequence of the false return of the defendant’s deputy. It has also been forcibly urged, that there is a fatal variance between the record of the judgment and the writ described, and that the levy of the plaintiff’s execution subsequently to that of Whittle upon an equal number of undivided fractional parts of the land of Saunders, affords presumptive evidence that the two executions were levied upon different fractional shares of the land, and that the evidence of the satisfaction in part of the plaintiff’s execution by this levy is conclusive against the claim of damage; that the plaintiff is estopped by it from showing that he was prevented from levying his execution upon the land of Saunders, by the false return of the defendant’s deputy, and that he cannot show he took nothing by his ..levy, because he has not alleged damage — 387 — from any such cause. It has further been contended, that there is a sufficient attestation of the copy of Whittle’s writ left at the office of the city-clerk of Manchester, in the attestation on the back thereof, at the bottom of the return of the attachment of real estate, and that the variation between the copy thus left and the original writ was of such a character, that, if liable at all, the defendant could only be liable for nominal damages, there having been a ■substantial compliance with the provisions of the statute, and an actual notice of Whittle’s attachment having been communicated by the copy as left, to the plaintiff and every one else. These various positions, the view we have taken of the case, has rendered it unnecessary to examine in detail. Some of them are technical, resting upon the forms of the declaration and of the records, and if well founded might readily be obviated by amendments. Others seem not to be sustained by the facts of the case. The plaintiff avers the return of the defendant’s deputy to have been false in this, that said deputy did not, as in said return alleged, at the time alleged, or at any other time, leave at the dwelling-house of the clerk of Manchester an attested copy of Whittle’s writ and his return thereon. This appears to us a sufficiently explicit statement of the falsity of the return. It could hardly be more so. It was not necessary to specify in what particulars the copy of the writ and return differed from a true and attested copy of the same, as that must be obvious from comparison. The case furnishes the means of such comparison, and it would seem upon examination there could be no doubt of the correctness of the plaintiff’s allegation, so far as concerns the copy of the writ. To say nothing of discrepancies between the return and the copy thereof, the copy of the writ left was not only without any attestation, as required by the statute, but was not a true copy of the writ in a vitally important particular. The writ was dated October 29,1853, and returnable at the next April term of court at Amherst. The copy was of a writ bearing the same date, but returnable in October, 1854, at a — 388 — term of court to be holden six months after the only term to which writs could then be made returnable. It has been suggested in the argument that this was a mere clerical error, which could mislead nobody; and that the place of the court being correctly stated as at Amherst, it was well enough, inasmuch as the terms of court being fixed by law, one at Amherst, in April, and the other at Manchester, in October, the plaintiff and all others must hare known that no term of the court was to be holden at Amherst in October, and must therefore have known that October was erroneously inserted in the copy instead of April. The sufficient reply to this suggestion is, that the plaintiff, if he examined the record, had a right to presume that the copy found there was a true copy of the writ, and he was entitled to find it attested as such by the officer. But he found, in the first place, no attestation, and in the next, a copy, which, had it been attested, would have been a copy of an illegal and void writ, upon which no valid attachment could have been made. For both these causes he was authorized to believe that no valid attachment had been made, and to act accordingly. The plaintiff further alleges that by reason of the false return of the defendant’s deputy upon Whittle’s writ, he was prevented from levying his execution upon the land attached by him, and thereby lost the benefit of his attachment. This seems a sufficient allegation of damage, if made out by proof. It is suggested that the copy of the plaintiff’s execution and return shows a levy or attempted levy of the same on a fractional portion of this very land, and that, having made the attempt to levy, the plaintiff cannot say nothing was acquired by it. But if the plaintiff took nothing by his levy, he may rightfully treat it as no levy. If the land, or Saunders’ interest in it, had passed to Whittle by his prior levy, nothing remained for the plaintiff, and it is matter of law that the second levy is void ; and a void levy, for all legitimate purposes, is no levy. The fact that both executions purport to be levied on the same number of undivided fractional parts of the land, instead of furnishing presumptive evidence that they were levied on distinct and separate portions — 389 — thereof, clearly indicates an attempt to levy the second execution upon the same interest that the first had been levied upon. The allegation that the plaintiff was prevented from levying his execution upon the land attached by reason of the false return of the defendant’s deputy, may properly be regarded as an allegation that he was prevented by said false return from making an effectual and valid levy upon said land ; and if for that cause he lost the benefit of his attachment for the satisfaction of his judgment in whole or in part, it would seem to be a good cause of action, and sufficiently stated. On the 29th of October, 1853, the plaintiff and Whittle both commenced suits against Saunders. Whittle’s writ was made and attempted to be served by an attachment of real estate at twenty or twenty-five minutes past eleven o’clock in the forenoon. The plaintiff’s writ was not served until thirty-five minutes past twelve o’clock in the afternoon. If Whittle’s writ were properly served, his attachment had precedence over that of the plaintiff. If it were not so served, but the defendant’s deputy falsely so returned it, the same result would follow. It appears from the copy of the writ and return from the office of the city-clerk of Manchester, compared with the copy of the writ and return from the office of the clerk of the Court of Common Pleas, that the defendant’s deputy did make a false return of the attachment on Whittle’s writ. But this return was conclusive against the plaintiff, if he undertook to claim the land by force of an attachment thereof against Saunders. For an officer’s return is conclusive of the facts properly stated in it, between the parties to the suit, and all those claiming under them as privies. If the plaintiff undertook to hold the land by his levy, he must claim it under Saunders, and would therefore be estopped by the false, return. Brown v. Davis, 9 N. H. 83; Angier v. Ash, 6 Foster 105. Whenever the return of an officer is regarded as conclusive, if the return be false, an action lies against him for such false return, by any person injured thereby, and it is the only legitimate remedy. Hall v. Tenney, 11 N. H. 516; Banks v. Johnson, 12 N. H. 452. — 390 — If, then, the plaintiff has suffered injury, he has pursued the proper remedy; and the action is properly brought against the sheriff, for he is civilly liable for the acts of his deputies. In law, the sheriff and his deputies are considered one officer, and the sheriff is liable for acts of the deputy done under color of office, whenever the deputy would be liable for the same acts. Watson v. Todd, 5 Mass. 271; Perley v. Foster, 9 Mass. 112; Vinton v. Bradford, 13 Mass. 114; Morse v. Betton, 2 N. H. 184; Knowlton v. Bartlett, 1 Pick. 271. But it does not follow that the plaintiff has sustained injury because the return is false. The injury must be proved. Sawyer v. Whittier, 2 N. H. 815. The return of the deputy being false, and the sheriff civilly responsible for the wrongful acts of his deputy, and the only mode of redress against a false return, by one who, if he undertook otherwise to invalidate it, must do so as claiming under one of the parties to the suit in which the false return was made, being in the present form of action, there can be no doubt of the plaintiff’s right to recover, if he has shown himself to have suffered injury by the false return. The injury complained of is the loss of the attachment of Saunders’ land, made upon the plaintiff’s writ, October 29, 1853 ; and if the case furnishes proof that he has been thus injured, the plaintiff would undoubtedly be entitled to recover damages equal to the value of the land so lost; But has the plaintiff lost the benefit of his attachment of the land, by reason of the false return ? The writ of Whittle, upon which the false return was made, was duly entered in court, April term, 1854, and judgment recovered thereon at the same term. Execution was subsequently issued, and the same was properly levied on the land of Saunders, May 20, 1854. ' The plaintiff writ was returned and entered April term, 1854,'and thf on continued, as it would seem, for the purpose of an investig on before an auditor, to the October term, 1854. At this last teiin the plaintiff amended his writ by increasing the amount declared for in his declaration, from one thousand to — 391 — fourteen hundred dollars, and the ad damnum in the same way and to the same extent. Judgment was thereafterwards rendered and execution issued, for $1882.10 debt, and $36.58 costs, at the same term. Before the plaintiff amended his writ, Whittle had become a subsequent attaching creditor, by the levy of his execution on the 20th day of May, 1854, of the land attached by the plaintiff on his original writ. Besides, the case finds there were other attaching creditors of Saunders, subsequent to the plaintiff, whose judgments are still unsatisfied in whole or in part. It may be considered as well settled, that an increase of the amount declared for in a writ, and of the ad damnum, and the subsequent rendition of judgment for a sum larger than could have been recovered under the original writ, is such an amendment of the whole proceedings as dissolves and discharges any attachment made upon the original writ, as against subsequent attachments of the same property made previous to the amendment. Danielson v. Andrews, 1 Pick. 156; Hill v. Hunnewell, 1 Pick. 192; Willis v. Crocker, 1 Pick. 204; Mooney v. Kavanagh, 4 Greenl. 277; Clark v. Foxcraft, 7 Greenl. 348; Bean v. Parker & al., 17 Mass. 591; Adams Bank v. Anthony, 18 Pick. 238; Seeley v. Brown, 14 Pick. 177; Leighton v. Lord, 9 Foster 259. When, therefore, the plaintiff took judgment for nearly four hundred dollars more than he had claimed to be due on his original writ, and his execution issued therefor on the 16th day of December, 1854, he was entirely destitute of any attachment as security for its payment, if the amount of attachments made in any way before the change in his writ was sufficient to absorb the property. The attachment on Whittle’s execution alone would seem to have been sufficient for that purpose, and to have actually absorbed it. The plaintiff, therefore, has suffered no injury by the false return upon Whittle’s writ. Without regard to that return, or to other attachments, Whittle had a right to levy his execution upon the land of Saunders, subject to the attachment made upon — 392 — the plaintiff’s writ on the 29th of October, 1858. He did so levy it, treating that attachment as void, or disregarding it entirely. When afterwards the plaintiff amended his writ, increasing the sum declared for and the ad damnum, and then took judgment for a supa almost four hundred dollars greater than could have been recovered under the original writ, he discharged his attachment as to all creditors who had in any way acquired a lien upon the property previous to that time, and could only take the land subject to their rights in the premises. But the levy of Whittle’s execution had already exhausted Saunders’ interest in the land; consequently nothing remained for the plaintiff, and he has no cause of complaint against the defendant. Having lost the benefit of his security by his own conduct, he is not now to recover it of the defendant, because his deputy committed an error in the discharge of his duty, which might under other circumstances have enured to his advantage. Whatever may be the liabilities of the defendant or his deputies to other parties, it is sufficient for the decision of this case that the plaintiff has suffered nc injury and has no legal claim for damage. There must, therefore, be Judgment for the defendant for costs.