Johnson v. Stone , 40 N.H. 197 ( 1860 )

Bell, C. J.

The return of a sheriff of matters material and proper to be returned, is conclusive between the parties to the suit, so that it cannot be contradicted for the purpose of invalidating the sheriff’s proceedings, or defeating any rights acquired under them. Messer v. Bailey, 31 N. H. 18. The officer here returned that he had levied upon a yoke of oxen and a yoke, and retained the same until the debt was paid, when he discharged them from the levy. The suit here is between the plaintiff and defendant in the execution, and the testimony of the sheriff was put in to show that he did not attach the yoke, but that his return was false in that particular. The return, as it was at first offered in evidence, was conclusive that the yoke was attached, and it furnished a complete justification of the defendant for the part he took in driving away the oxen with the yoke upon them. It was not competent to impeach this return by extrinsic evidence, and it is immaterial that it was the evidence of the officer himself that was introduced to show that the return was false.

After the return was amended, it furnished no evidence that the yoke was levied upon at all, and the sheriff' and the defendant of course stood in the position of mere wrong-doers, taking the yoke without the slightest color of legal authority from the execution. By this amendment the incompetency of the officer’s testimony was entirely obviated.

. The charge, as to the supposed permission given by the boy to the officer to take the yoke, w'as correct. A son has no authority, as such, to lend his father’s property, and there is no presumption that such authority has been given to a son. It may be shown that authority to lend tools and the like, has been given to a son expressly, or such an authority may be inferred from the conduct of the father, tending to show that he reposed such confidence and intrusted such discretion to the son, as by showing that on other occasions the son had lent the father’s property of a similar kind, and the father, upon the facts coming to his knowledge, approved what he had done; but without such proof the son stands in the same position as a stranger.

As there was no evidence of any such authority, the charge of the court, that the jury might find whether the boy had any such authority or permission from his father, was erroneous; but of this the defendant cannot complain, since its only fault is that it was too favorable to himself.

The charge requested, that if the defendant supposed and understood, from the acts and declarations of the officer, that he had seized the yoke as well as the oxen, he would be justified, was not supported by the evidence. The proof is that the defendant, Stone, by the direction of the officer, put the yoke on the oxen himself, and drove them away with it. There is nothing in the case showing any act or declaration of the officer tending to mislead him, or to give him the erroneous impression that the yoke had been attached. There can be no doubt that it is the duty of every man, who assumes to interfere with the property of a third person, to ascertain whether he is acting under due authority, and he cannot excuse himself to any one who has been injured by his conduct, by the suggestion that he supposed he was acting under proper authority. His suppositions are not mattei’S of inquiry, nor in any way material, if his conduct is illegal.

It could not be contended that a creditor, or other assistant of an officer, acting in good faith, and intending only to act in the legal discharge of a duty, should be involved in any responsibility for illegal and unauthorized acts of the officer in which he took no part, and to which he did not assent. If, for instance, the defendant went with the officer for the purpose of assisting him to levy on property for the payment of his debt, and he directed the levy to be made on the oxen alone, and he did nothing, and assented to and approved of nothing which was done by the officer relative to the yoke, he would not be responsible for the officer’s conduct. But that is not this case. The defendant had made himself a trespasser by his own personal acts, and his justification must depend upon the question, whether the officer, in whose aid he acted, can be justified under his process ; and not upon any ideas or impressions of his, either as to what was done by the sheriff, or his authority for doing it.

The return, as amended, does not show that the yoke was taken on the execution, and the evidence of the officer shows that it was not so taken. It is entirely immaterial that the officer had the authority to take it on the execution, if he did not so take it.

As the act of the defendant is a trespass, and no justification is shown, there must be

Judgment on the verdict.