Charles Kimball & Co. v. Perry

When a deputy sheriff sold goods on execution, on a credit of three months, by direction of plaintiff’s attorney; — Held, that the sheriff was not responsible for his neglect to return the execution, &c., as he did not act officially. The attorney of record of the plaintiff may, when the plaintiff lives at a distance, give such instruction to an officer as he thinks the interest of tlie client requires; and his directions to the officer, when he gives him an execution, in what manner to execute the same, will bind his client.

This was an action brought against the defendant, sheriff of Windham county, for the default of Eli B. Russell, his deputy, in not serving, collecting, and returning an execution in favor of the plaintiffs against one Daniel Upton, which had been put into his hands for that purpose. Plea, not guilty. Issue to the country. On trial in the county court, the plaintiffs gave-in evidence a regular attachment in their favor against said Upton, returnable to the April term, 1840, of Windham county court, which was duly served on the 16th day of March, 1840, by attaching the goods of Upton, subject to certain prior attachments ; and being duly returned to said court, the plaintiffs perfected their judgment and took out an execution thereon, dated the day of April aforesaid. The plaintiffs then gave evidence tending to show that they seasonably put said execution into the hands of said Russell, who was, at that time, a deputy of the defendant. The defendant gave in evidence, on his part, the said prior attachments of the other creditors of Upton — the judgments rendered thereon, and the executions taken out upon the same, together with the execution in favor of the plaintiffs; by which it appeared, from a minute made by said Russell on each, that he received the same, as deputy sheriff, on the 25th day of April aforesaid, and made his return ■thereon, that he levied the same on the goods attached as aforesaid. The defendant then offered testimony tending to show, that, at the time said executions were delivered to said Russell, he was directed by the other creditors, and by N. T. Sheafe, the attorney of record of the plaintiffs, whose name was on the back of their execution, as such attorney, to levy on said goods, and having duly posted the same, to sell the same on a credit of three months for all sums over five dollars, and that he did levy and sell accordingly ; and that, in pursuance of such direction, he did sell the goods on such credit, to divers persons at Bellows Falls, and in the towns adjoining thereto ; and he was then directed to go round to the several persons to whom the goods were sold, and take their notes therefor; that, after selling for about six days, the vendue, by the direction of Mr. Sheafe, as attorney as aforesaid, and by direction of the attorneys for the other creditors, was again adjourned for one month, and, at the time to which the vendue was adjourned, he again sold on like credit, and again went round to the several persons to whom the sales were made, and obtained their notes for the amount of their bids. To this testimony the plaintiffs objected ; but the court decided that it was proper to be admitted, and, if believed by the jury, that the plaintiffs ought not to recover; whereupon the plaintiffs entered a nonsuit, with leave to move the court to set the same aside and for a new trial, on account of the decision aforesaid; — and the plaintiffs afterwards made their motion accordingly; but it was decided by the court that the motion should not be granted, but that the said nonsuit should stand ; and thereupon the court rendered judgment for the defendant. The plaintiffs excepted. The plaintiffs contend that a new trial ought to be granted because the facts stated were not a sufficient bar to their action. The delivery of the writ to the deputy; the receipt by him, as such; the levy, sale, and adjournment, were all regular took place within the life of the execution. 1. The direction to sell on credit was not an act which divested the deputy of his official character, as representative of the sheriff, and converted him into the agent or broker of the plaintiff; for such sales are usual, beneficial, and of injury to no party. At most, they amounted to a consent of the plaintiffs to receive the securities takeir for the sales, in lieu of money; and it was the duty of the deputy, before he parted with the goods, to have taken such securities. If he omitted this, and, by the plaintiffs’ consent, advise, or even direction, still effected it within the life of the execution, the relative situations of the parties were not changed. He could not keep the securities on his private responsibility. And what becomes of the sales for sums less than five dollars? In Massachusetts, where a writ was filled up provisionally, and delivered to a sheriff, with instructions not to serve till a certain time or contingency, the action was held not to have been commenced till the time of service. Seaver v. Lincoln, 21 Pick. 217. So in the cases which have occurred in this state, where the sheriff was decided not to be holden, it does not appear that they were absolutely received by the officer as such, for in Strong v. Bradley, Sheriff, 13 Vt. R. 9, he was in the first place, to exercise his discretion, whether he should serve, i. e. take the execution, as deputy sheriff, and execute it. So in Fletcher v. Bradley, sheriff, 12 Vt. R. 22, the sheriff was to manage discretionarily, and being either unwilling or unable to get collateral security as an agent, he proceeded to act as an officer, and executed his writ. In the present case, the deputy performed every essential act, as an officer; and to view him in |any other light would make his levy and sale tortious, especially as no consent of the original debtor is shown. 2. If these directions were out of the regular course of proceeding by the sheriff, and would, if given by the plaintiffs, have discharged him, then we say, they were out of the course of regular proceeding by the attorney, acting under his general character, and could not bind the plaintiffs. There is no question, at this time, how far an attorney at law has authority to appeal, discontinue or manage the suit of his client according to the forms and usages of the court, antil he obtains a judgment. His authority in regard to the execution, is to have it collected in a legal way ; but he cannot cancel it in payment of his own debt. Smock v. Dade, 5 Rand. 639. He cannot, without the manifested consent of his client, discharge it for less than its face; Lewis v. Gamage, 1 Pick. 347; 5 Pet. 113; nor release the sureties of his client’s debtor ; Givens v. Briscoe, J. J. Marsh’s R. 532 ; nor appoint an appraiser on the execution'; Dodge v. Prince, 4 H. R. 191 ; nor receive a bond from the debtor in discharge; Kirk v. Glover, 5 Stew. & Port. 35 ; nor make his clients the bailiffs of their debtors, by receiving on the execution securities to collect, and thereby render them liable to an action of account; Langdon v. Potter, 13 Mass. 320. What his known official character does not authorize him to do, the sheriff cannot take advantage of against his client ; and if the attorney at law direct the sheriff to discharge the debtor from custody, without any satisfaction or consent of the plaintiff, that officer, by knowingly doing so, becomes liable for an escape. Kellogg v. Gilbert, 10. J. R. 220 ; Crary v. Turner, 6 Id. 51. As to not returning the execution, see also C. L. R. vol. 37, p. 206 ; Holmes v. Clifton, A. & E. 673. said there were two questions presented in the exceptions — 1. Had the plaintiff’s attorney power to direct the deputy to sell on credit ? 2. Did such direction exonerate the sheriff? As to the first point, he maintained that the latitude of the attorney’s discretion is greater in relation to foreign, than other demands. In regard to the extent of his discretionary power, in various particulars, he cited 6 Johns. R. 53 ; 2 Ld. Ray. 1142; 1 Salk. 70, 89; 1 Bac. Ab. 299; Carth. 417 ; Gorham v. Gale, 7 Cow, R. 739; Lynch v. Commonwealth, 16 S. & R. 368; Ewin v. Blake, 8 Peter’s R. 18 ; Gray v. Was, 1 Greenleaf, 257 ; Crooker v. Hutchinson, 1 Vt. R. 73 ; Briggs v. Georgia, 10 Vt. R. 70; Crooker v. Hutchinson et al. 2 Chip. R. 117; Halker v. Parker, 7 Cranch. 436. He justified the discretion exercised in this case, by the considerations that the client resided at a distance, and that there were a number of attachments, previous to his, upon the property, with little prospect that it would reach his client’s execution, unless he gave the directions he did in regard to the time and manner of sale. Upon the point, whether the attorney’s directions exonerated the sheriff, he maintained that the sheriff is responsible only for the official acts and neglects of his deputy ; Rev. Stat. 73 ; 4 Mass. R. 63; — and that when the deputy undertakes, by direction of plaintiff, to do official business contrary to the course prescribed by law, he is, pro hac vice, divested of his official character, and becomes the servant and agent of the plaintiff; 2 Esp. 591 ; 4 Term. R. 119 ; 4 Mass. 63 ; — and that, therefore, when plaintiff gives the deputy special instructions to sell upon credit, the sheriff is not responsible. To this point he cited Gorham v. Gale, 7 Cow. 739; Marshal v. Hosmer, 4 Mass. 63; Walden v. Davidson, 15 Wend. 579; Cook v. Palmer, 6 B. & C. 739; 7 D. & R. 133; Fletcher v. Bradley, 12 Vt. 22; Downer v. Bowen, 12 Vt. 453; Strong v. Bradley, 13 Vt. 9; Porter v. Finer, 18 Ch. 177. He further maintained, that the allegations in the plaintiffs’ writ were not sustained. It was alleged that the execution had been delivered to be executed, in due form of law, when the case showed that it was delivered to be executed, not according to law, but according to direction of the plaintiffs. It was alleged that the deputy made no return of the execution according to the precept thereof; but a plaintiff can recover no damage for non-return of an execution, when, by his own direction, he, in effect, releases the sheriff from making a return. It was alleged that the deputy never caused said sum, or any part thereof, to be paid to the plaintiffs. But for this the sheriff was not responsible. His deputy was directed to receive notes for the goods ; and whatever responsibility existed for not collecting and paying over their amount, was the responsibility of the deputy as plaintiffs’ agent, and not of the sheriff as for his official neglect.