Stevens v. Colby

Bellows, J. Before the law of June, 1857, admitting parties and others interested to testify, a deputy, for whose default a sheriff was. sued, was a competent witness upon being released by. such sheriff; and this is too well settled to need the citation of authorities. The law of 1857 made parties competent, unless the adverse party ‘ was an- executor or administrator; but there seems to be no reason for [165] supposing that the statute designed to exclude any who were competent before, whether parties in interest or merely interested in the event of the suit. If the latter, they would clearly be made competent by the-statute, even although the adverse party was an executor or administrator ; and there would be strong grounds for holding that where a party in interest at the commencement of the suit, but not upon the record, had ceased to have such interest at the time he was offered as a witness, he would be competent as before the statute, although the adverse party was an executor or administrator. But however this may be, the fact that the person offered as a witness is liable over to the sheriff, does not necessarily make him a party in interest, for he may decline to take upon himself the defense of the suit and leave the sheriff to his remedy on his bond. Barker v. Remick, 43 N. H. 239. In the case before us it does not appear that Cummings had taken upon himself the defense of the suit; on the contrary at the time he testified he had apparently no interest in it whatever, and under those circumstances he could not, we think, be regarded as a party ; and so is Barker v. Remick, before cited. The remaining question is, whether the liability of the sheriff for the insufficient return is modified or controlled by an agreement with the plaintiff or her agent. The court instructed the jury that if the deputy received the execution upon the condition that his liability as an officer should be limited, and that he should" only do what Rogers, the attorney, directed him to do, and in the manner directed by him, and that Rogers was authorized to make such an arrangement, the verdict should be for the defendant. It appeared that the return was written by said Rogers and that it was insufficient, and we are of the opinion that there was evidence on which it was competent to find that such an arrangement was made, and that Rogers had authority to make it. The evidence tended to prove that Rogers was the plaintiff’s general attorney and adviser ; that he brought the suit in which the execution was issued; that he gave it to the deputy and directed him to be governed by his directions, and he would tell him what to do and how to do it, and it would be all right; and it appeared that the sale on the execution was made under Rogers’ directions, and that while it was going on he consulted the plaintiff. If, then, such an agreement was made, and the deputy followed the attorney’s direction, and signed the return made by him, the defendant would not, we think, be liable for its insufficiency. To make the sheriff responsible for the acts of his deputy, they must be done in the regular course of his official business; and therefore if the creditor assumes to control the acts of the deputy, and direct him as to the mode and manner of executing those acts, he thereby makes him his own agent, and the sheriff is not responsible for any default caused by obeying those directions. To hold otherwise, and make the sheriff liable for the creditor’s own mistakes would be palpably unjust; and such a doctrine is not sustained by the authorities. Indeed, the authorities are clearly the other way. In Willard v. Goodrich, 31 Vermont 599, it is held that when a [166] party or Ms attorney assumes to give special instructions to an officer in regard to the execution of process in his hands, differing from his legal duty, the officer is exonerated from his legal liability. He ceases to be a public officer, and becomes a private agent. So is Strong v. Bradley, 14 Vt. 55. So when an attorney approves of a receipt for personal property attached on a writ, the sheriff is relieved^ from responsibility for the safe keeping of the property; Jenney v. Delesdernier, 20 Maine 183, where the power of an attorney is much discussed. So when the creditor endorses on his writ directions as to what property shall be attached, the officer is not bound to attach any other. Marshall v. Hosmer, 4 Mass. 60; Goddard v. Austin, 15 Mass. 133; see also Ball & al. v. Badger, 6 N. H. 405. So it is held that the directions of the attorney who prosecuted the suit and obtained judgment have the same effect; as in Willard, v. Goodrich, 31 Vt. 597; Doe v. Frye, 5 Bing. N. C. 569, where the attorney requested the sheriff to appoint a. particular officer, gave Mm Ms warrant, went with Mm to the debtor’s house, and encouraged an illegal arrest from which the debtor afterwards escaped; held that the sheriff was not liable on the ground that the plaintiff controlled the discretion of tlse officer in directing him to thrust his hand through a paper in the window to open the door, and arrest the debtor. So in Gorkam v. Gale, 7 Cow. 739, it was held that an attorney, under his general warrant, has authority to give directions to enforce the execution obtained by him, and if he does, and the deputy conforms to them, the sheriff is not liable, for he is liable only for official acts and misconduct; and see cases cited. In Jenney v. Delesdernier, 20 Maine 191, which was much considered and numerous cases cited, it is laid down that the attorney may control the remedy on a demand left with Mm for collection, although he cannot release or .discharge the cause of action without payment, and he may therefore direct what attachment to make and what receipt the officer may take. In some cases it has been said that the power of the attorney determines on the rendition of judgment. Tippling v. Johnson, 2 B. & P. 357; Jackson v. Bartlett, 8 Johns. 367; citing for authority 1 Roll. Abr. 291; Morton's Case, 2 Show 139. However, it is now settled the other way by a great weight of authority, which accords with' our own practice and the case of Cheever v. Merrick & al, 2 N. H. 379. So is Bank of Georgetown v. Geary, 5 Peters 113, where it was held that the power of the attorney does not cease with the entry of judgment, and that an agreement by him with the endorser of a note, that if he would confess judgment, the execution should first be enforced against the maker, is binding, and that proceedings upon the execution are proceedings in the suit. So is Lewis v. Gamage, 1 Pick. 350, recognized in White v. Hildreth, 13 N. H. 107, which also recognizes Bank v. Geary before cited. See also Steward v. Biddlecum, 2 Comst. 103, and Conner & al v. Southland, 3 Hill’s Rep, 552, 555, and Watkins v. Sykes, 22 Wend. 568. These cases [167] hold that the authority of the attorney continues at least a year anti a day after judgment. Upon the same general principle it is held in England that if a special bailiff be appointed at the request of the plaintiff the sheriff is not responsible. De Moranda v. Dunkin & al, 4 T. R. 119; Ford v. Lecke, 6 A. & E. 699; Ball v. Badger, 6 N. H. 405. Upon these grounds, we think the jury might legally find that-such an arrangement as the instructions contemplated was made, and we are of the opinion that the sheriff would not be responsible for a defect in the return drawn by plaintiff’s attorney in such a case. Therefore there must be Judgment on the verdict.