Thatcher v. Young , 3 Me. 67 ( 1824 )

Mellen C. J.

delivered the opinion of the Court.

Though the plaintiff’s motion is somewhat novel in this stage of the cause, this not being the point reserved; yet though we deny the motion, we do not do it on that account, but because we think it would not avail the plaintiff, nor change the nature of his claim. We have been furnished with the new surrejoinder which he has moved for leave to file. It seems to be a departure from the replication, and directly at variance with the verdict and judgment therein set forth, and which he offered in evidence at the trial; — and as this motion is addressed to our discretion, we look to the whole cause, and decide upon the usefulness of such a surrejoinder. Besides, he does not deny the correctness of the charges made against Bowman, of negligence and omission, nor the correctness of the verdict as to him ; but would now allege in the proposed surrejoinder that such negligence and omission on the part of Bowman were occasioned and produced by the negligence and misconduct of Young, in not keeping the property by him attached, but suffering it to go back into the hands of Hilton the debtor. This is only an indirect mode of contradicting the verdict and judgment, neither of which is liable- to impeachment in this manner. Besides, the wrong of Bowman is none the less because occasioned and produced by Young ; at least so far as relates to the present action. It is not easy to perceive how such could be the fact ; each deputy acting independently of all others. The present action is understood to be brought for the use of Bowman ; but if the facts now offered could ever have availed him, they should have been urged in the defence of the action by Dorr against the present plaintiff.

Then as the pleadings in the case now stand, it appears that the point in issue was whether the judgment recovered by Dorr was for the misfeasance or neglect of Young. The rejoinder denied, — the surrejoinder affirmed it. The plaintiff on the trial read in evidence a copy of the record of the case Dorr v. Thatcher, by which it appeared that the declaration charged both the deputies, Young and Bowman, with official negligence and misconduct; and Thatcher, the sheriff, pleaded that neither he nor either of his deputies was guilty. The jury by their verdict found the said Bowman guilty, and him only. The proof offered and rejected by the Judge who sat in the trial of the cause, was intended to shew that the judgment was not recovered against the present plaintiff for the negligence and misconduct of Bowman, but “ for “ the negligence and misfeasance of said Young, prior to the mis- “ feasance of said Bowman with respect to the property so cc attached, and the proceedings in said execution;” — and the question is whether it was properly rejected. It does not appear by the record that Young was ever guilty, either before or after Bowman was ; — but if he was, the only mode of proving that a judgment was recovered for his misconduct is by the record of such judgment, and the record in the present instance expressly negatives that fact. It is evident that the jury, on examination of the evidence, found it applicable to the charge against Bowman only, and accordingly found him guilty. The effect of the rejected proof, if admitted, would have been to contradict the record of the verdict and of the judgment thereon rendered ; and of course it was properly rejected, and the nonsuit is accordingly confirmed.