Carlton v. Patterson

Bell, J.

The principal question presented by this case, relates to the admissibility of the postscript attached to the application for an examination and sale of the property attached by the defendant. To the admission of this postscript the defendant objected, and it was rejected. If we regard this action as pending between Carlton and Patterson alone, this evidence was clearly inadmissible. It was, at most, the declaration of a stranger, by which the defendant could not be bound. It was not a paper requiring any answer on the part of the defendant, so that any inference could be drawn from his silence. It was merely some instructions from an attaching creditor to an officer, as to what he desired should be done in regard to the property attached.

The only ground on which it can be supposed to be ad» missible is, that Hutchins is the party in interest in the present suit, who is in truth defending his own case. The facts presented to us show nothing like this. Though a sheriff may, in some cases and for some purposes, be regarded as the servant of the plaintiff in a suit, yet it is very clear he is no agent to contract for or to bind the plaintiff by any agreement relative to the keeping of the property attached. As to that matter he is in no sense agent of the plaintiff. He owes to the plaintiff certain duties, and is charged with certain liabilities, which he is at his peril to discharge ; but the attaching creditor cannot directly interfere to discharge the contracts niade by others to keep property for the sheriff, neither has he any power to make such contracts for the sheriff, nor to create evidence by which he *586 may be bound. The sheriff has duties to perform towards others besides the attaching creditor; he is holden to the debtor, if the action fails, and may be liable to pledgees or mortgagees, or to other third persons having valid claims upon the property. And it might be attended with most ruinous consequences to the officer, if his claim upon his bailee could be discharged by the creditor, without providing against the claims of others upon him.

There is in the present case no evidence that Hutchins is the party in interest in this case; no proof that he is bound in any way to indemnify the defendant in case he should be charged, or that he was in any way responsible to the defendant for the result of the suit. It does not appear that he appears to defend the action by the consent of the defendant, or that he has any agency by which he has a right to bind the defendant, by any admission he may now make, or by rendering admissible any statement he has heretofore made.

Under our practice any party who can satisfy the court that he has any right involved in the trial of a case may be admitted to prosecute or defend the action, but such admission has no effect upon the rules or principles which govern the case. It still remains the action of the original plaintiff against the original defendant, and the case still proceeds and is to be tried upon the same rules and principles as it would do if no third person had interfered.

It could hardly be permitted to allow a third person to defend a suit, if the whole ground of the action would be changed, and the trial would proceed upon evidence which would be incompetent between the original parties. The judgment when rendered, in such a case, is rendered between those original parties, and they and their interests are conclusively bound, however it may be as to others.

It is not enough, then, to show that a party supposed to have an interest, has been admitted to defend, either generally or speciall y, in order to make his statements or admis *587 sions evidence. It is necessary to show that he is the party in interest, the party who really carries on the controversy under a party who has no concern in it, and is merely a nominal party, or under one who is fully indemnified. "When that fact is shown, the declarations and admissions of such real party become evidence. And this is equally so, whether he is or is not admitted to prosecute or defend as a party. An order of the court admitting a party to defend is not even evidence of any interest in the suit whatever. The facts laid before the court to obtain such order, and the security required by the court to be given to the original parties for the protection of their rights, may furnish very conclusive evidence of such interest.

In the present case there is no fact on which the admissibility of this evidence is urged but the fact that the plaintiff in the original attachment had appeared here specially for the protection of some supposed interest. This is a very different matter from being the real party.

It is urged by the plaintiff that this postscript was admissible as part of the res gestee. But it has no claims to be received in that character. The doctrine, as stated by the court with great accuracy, in Sessions v. Little, 9 N. H. Rep. 271 , is this : If evidence of an act done by a party be admissible, his declarations made at the time and tending to elucidate or give a character to the act, and which derive credit from the act itself, will be also admissible as part of the res gestae. In the present case the act done is an immaterial one. It has no conceivable bearing upon the merits of the case, and does not, therefore, come within the first clause of the rule. It has no tendency to elucidate or give a character to that act, but is entirely a separate and distinct subject.

It is said it is admissible as the admission of an agent, while the agency continues. But we discover no agency for the defendant. If the allusion is to the agency of G. & Morrison for Hutchins, the difficulty is that supposing *588 the attorneys were fully empowered to speak for Hutchins, Hutchins had no authority to speak for the defendant. It is not a matter of course that an attorney for the plaintiff in a suit is thereby constituted an attorney for the sheriff or his deputy, nor that the plaintiff himself is either principal or agent, as to the officer who serves the process. Where the creditor is made by law responsible for the acts of the officer, there the creditor may direct, and the officer is regarded as, to that extent, the agent of the creditor. The creditor may direct the surrender of property attached, and as to him the officer will be justified in pursuing his directions. But .there are many things in the conduct of an officer, as to which he is in no way the agent of the creditor. And we suppose there can be no point clearer than that an officer, unless he has an express authority by an indemnity, or otherwise, cannot bind the creditor by any special agreement as to the property attached.

By the defendant it is suggested that it does not appear that Hutchins has any interest in the suit, and that he might (himself be a witness. And we do not find in the case any facts which definitely disprove this position. We may conjecture, indeed there is a strong presumption, that such might probably be shown, but they do not appear.

The postscript seems, too, as is suggested, to refer to the receipt, and it may well be doubted, if the effect of the fair construction of the receipt can be varied by inference from a loose note like this.

The mortgage was clearly incompetent. It is not evidence of any fact alleged in the declaration, neither of the agreement alleged, nor of the performance by the plaintiff of his part of it. Indeed, its competency is here hardly insisted upon. 4

The deposition of Jackman was properly rejected. The justice certifies that he was not personally present, and he does not annex a copy of the notice. Neither does it appear by whom or by whose authority the cross examination *589 was made. The caption is defective because it does not state that the defendant was not present, unqualifiedly, if that was the fact, or if he was present by counsel, that fact should have been stated. If it would be a fair construction of the justice’s certificate; nothing appearing to the contrary but the fact that questions were put to the witness by way of cross examination, that there was no appearance, personal, or otherwise, then the absence of the copy of the notice is fatal. Rev. Stat. ch. 188, §§ 20, 21.

It was not competent to introduce any other evidence in ¡relation to the time of the rendition of the judgment than the judgment itself. This is a matter of record, and to be proved by the record. The record cannot be disproved by other evidence, when it is brought, as in this case, collaterally and incidentally, in question, and the legal effect of the record cannot be changed by other evidence any more than the express allegations. Willard v. Harvey, 4 Foster’s Rep. 344.

It may happen that from inadvertence the day on which a judgment was in fact rendered may not be stated, so that according to the well known ordinary presumption it must be understood to have been rendered on the last day of the term, but this cannot be shown in a collateral proceeding to be an error. Baker v. Merrifield, 13 N. H. Rep. 357 .

Application must be made to the court, in the original action, for an amendment of the record, which is a matter of course upon proper evidence. And the error can be obviated in no other way.

Judgment on the verdict.