T. F. & W. L. Strong v. Jeptha Bradley, 14 Vt. 55

The opinion of the court was delivered by Reideield, J. 1. We think the court erred in instructing the jury, that th.e letter, written by plaintiffs’ attorney to'the defendent’s deputy, was “ equivocal.” We think it did give the officer an unlimited discretion, in the management of the collection of the execution, adding, indeed the request that if it became necessary, in the opinion of the officer, “ to pursue any other course than the straight forward one,” they would wish to be informed ; and all this, when no discretion, whatever, was intrusted to the officer !

We cannot think this the fair construction of the letter. And the jury should have been told, that it did vest in the officer an unlimited discretion to pursue such a course as he deemed for interest of the plaintiffs. His omission to inform plaintiffs’ attorney of his proceedings, from time to time, as requested, might be important in determining how far the officer faithfully executed the trust reposed in him. 2. We think the court erred in not instructing the jury that the defendant was no way liable for the manner in which his deputy executed a discretion, intrusted to him by the creditor in the execution.

If the creditor obtain from the sheriff the appointment of a special deputy, for the purpose of collecting his execution, there is no liability, on the part of the sheriff, for any default of such deputy. He is the agent of the party, and himself alone liable for such degree of diligence as the particular nature of his retainer requires. So, too, by.the English decisions, if the party select a particular deputy, who acts under his instructions, he thus makes him, pro hac vice, a special deputy. Ford v. Leche, 33 C. L. 184, and cases there cited. Doe v. Trye, 35 C. L. 234. Porter v. Viner, 18 Com.

L. 177, in notis. We intimated last term, in this same case, that we were strongly inclined to adopt this view of the law, as being applicable to the subject of sheriffs’ liability in this state. The further discussion and consideration of the subject has but served to confirm this impression. If a discretion is intrusted to the deputy, under which he proceeds to act, we cannot consider the sheriff liable for any of his acts, or omissions, within the legitimate range of that discretion. The discretion in this case was unlimited.

Whatever then, the officer did, should be referred to that discretion, unless indeed it could be shown that the officer did not act under his instructions, which could only be done by positive proof, showing that he was not, in any manner or degree whatever, influenced by such instructions. For although he might have been mainly influenced by other considerations, yet if he was in any degree influenced by these special instructions, the defendant is exonerated from all liability, on account of his conduct. We see no testimony in the case tending to show he was not influenced by these instructions.

And the burden of showing this rests with the plaintiff, for the instructions are admitted. And now unless some irrefragable evidence is introduced, to show that the officers acts, ... ... . ,. . ... . which are fairly referrable to the instructions, did not in any degree proceed from them, nor were influenced by them, they should be referred to such instructions. If the creditors will . give special instructions to the deputy, and it is doubtful how far they may have influenced his conduct, these doubts should be solved against the party raising them.

It is incumbent on him to show that he has not himself misled the sheriff’s officer. And in a case like the present, it is not to be left to the jury to make some kind of mental inference that the officer did not act under these instructions, when his acts are fairly referrable to that cause, and there is no proof that they proceeded from any other source. In ordinary cases, where one has authority to do

an act, and does the act, it is, by necessary intendment of law, referred to such authority. Hence the clause, in the plea in bar of justification under process, virtute cujus is not traversable even. I understand, too, by the English practice, the same rule extends to the present case. If the authority will cover the act, or omission of the officer, the sheriff is not, and cannot be made liable, by proof that the officer did not act under the authority.

I, for one, should be well enough satisfied with that rule, in the present case; and in practice I do not consider the one here laid down very different from that. In abstract principle the rule here laid down is not merely right; but is, so far as the court can perceive, absolute, moral justice, to both parties. My only apprehension is, that, in practice, it will be found rather too much refined for ready and sure application. But, with the limitations above, we do not well see how it can mislead or confuse the least experienced in technical distinctions.

But, surely, it should not be referred to the jury, in a case like the present, to determine whether the officer did in fact act under his instructions or not. They might give the case to the plaintiffs because the officer was himself bail on the mesne process; or because he did not write the plaintiffs’ attorney, or possibly, because the defendant hired him by the month. It is obvious none of these grounds would be sufficient. The fact of the officer being himself bail, would be a reason why he would commit' the debtor immediately, if he did not intend to proceed under the instructions.

His not writing plaintiffs’ attorney would show_ nothing more than a want of diligence in executing a special authority, for which we have seen the defendant cannot be held responsible, terms uPon which the deputy was employed could hardly effect the extent of the sheriff’s liability for his acts. the instructions are given to the officer, who is himself liable for his own acts, and he does not pursue them with proper diligence, very likely he might be liable for general official neglect; but this is not the case, when another is liable for the acts of such officer.

The charge of the court to the jury, in regard to the duty of the officer to return the execution non est inventus, was, we think, erroneous. The jury were told that if the officer had not seen the debtor before he absconded, so that he could, consistently with the facts, have returned the execution non est inventus, it was his duty to have done so. Now it could hardly be said that the deputy, being himself bail, would be under any greater obligation to make such return than if some other one had been bail.

And in this latter case, if the officer, but for the instructions, would have arrested the debtor, but under them, finding upon proper inquiry, that he was destitute of all means, did not therefore go to see him, even, until he learned he had absconded he could not then, consistently with good faith, make a non est inventus return.

So that, upon this point, the defendant could not be liable, except under the same limitations as in the former, i. e. that it should be substantially and fully shown that these instructions did in no sense induce the deputy to pursue a different course, in that respect, from what he otherwise would have done. Judgment reversed and new trial.