Austin v. Town of Burlington , 34 Vt. 506 ( 1861 )

Aldis, J,

The Bank of Malone sued J. & J. H. Peck & Co. The declaration contained only the money counts. The Bank’s claim was as indorsee of two promissory notes, of which the Pecks were prior and remote indorsers. The indorsements were in blank. The Pecks were accommodation indorsers. In the County Court the plaintiff amended the declaration by adding special counts on the notes. The defendant, here sued for default of its constable, in not having the property attached on the writ forthcoming upon the execution, claims that the amendment dissolved the attachment by introducing a new cause of action.

That an indorsee may sue a prior and remote indorser, and recover on the money counts, would seem to be the tenor of modern decisions. 11 Pickg. 316; Rushworth v. Moore, 36 N. H. 188; Johnson v. Catlin, 27 Vt. 87.

Whether this is true ás against a mere accommodation endorser, known to be such when the note is negotiated, seems more doubtful. 14 Vt 228; 27 Vt. 87; 7 Wheat. 35; 1 Denio 105. Though a party may not be able to recover against a surety on the count for money had and received, yet, on the count for money paid, it would seem as if the action ought to lie. Each indorser impliedly promises subsequent indorsers that he will pay the note if the maker does not, and that if any of them should be compelled to pay it, he will pay them back the money they so pay for him. Payment by the subsequent indorsees would seem clearly to be money paid for prior indorsee, and at his implied request. See 36 N. H. 188; 28 Vt. 19. Upon this point it is not necessary to pass, as we all concur in holding that the amendment, if necessary to enable the Bank of Malone to recover against the Pecks, was not the introduction of a new cause of action, so as to dissolve the attachment.

An attaching creditor has not, as against subsequent attaching creditors, receiptors or sureties, any right to amend his declaration so as to enhance his damages and increase his lien upon the property attached beyond the .amount -originally and really intended to be sued for. But so long as', he.acts in good faith and embraces in his new declaration only the original cause of action intended to be described, he may, without hazard to his security, correct by amendment all mere errors of form, of misdescription and of want of technicality. Officers and all others, who may become liable for the debtor, act with the knowledge that courts have this power of allowing amendments — that its exercise is highly useful in the administration of justice ; and that their liabilities must be assumed subject to its reasonable application.

When the record substantially shows that the new counts are for the same identical cause of action as the old, no question can arise ; but where the record does not show this, (as in this case,) and the new counts may embrace new causes of action, then the law, prima facie, presumes that the judgment does embrace new causes of action not embraced in the original declaration, and casts the burden of proof upon the plaintiff to show that in point of fact no new cause of action, no additional sum in damages has been included in the judgment. Nor is the plaintiff bound to show this by the files and records of the court. Parol evidence — the testimony of his attorney — is admissible for this purpose. The common counts contain no statement of the specific claims of the plaintiff. Without parol evidence, therefore, it is impossible to tell the amount of the claims for which the property attached will be held to respond, or what the specific claims are.

This subject has recently been before the Supreme Court of Massachusetts, in the case of Wood v. Denny, in the 7th Gray 540, and directly decided as above indicated.

In New Hampshire, Laighton v. Lord, 9 Foster 257, the question has been very carefully examined, and the court have held the same doctrine. The authorities have been so fully examined and carefully weighed in these two cases, and the reasoning and conclusions of the court are so satisfactory, that we deem a further reference to the adjudged cases superfluous.

The rule is also stated in Drake on Attachment in substantially the same way. Where the writer says, § 285 — “ If, however, such an intent ” (the intent to include the amended claims in the original suit) “ can not be inferred from the writ and declaration, the new counts will be considered to be for other and not for the original causes set forth,” we understand him to mean that such is the prima facie presumption of the law, and thus easting the burden of proof on the plaintiff to repel the presumption. The language is taken from the opinion of Judge Putnam in Fairfield v. Baldwin, 12 Pick. 395, and should be construed with the light thrown upon that case by the remarks of Judge Fletcher in Felton v. Wadsworth, 7 Cush. 589, and by the more recent decision in Wood v. Denny.

II. Another question is, were the directions given by the plaintiff’s attorney in regard to the attachment, such as would exonerate the officer from his official responsibility ?

In the leading case of Strongs v. Bradley, 14 Vt. 64, the letter of the creditor was construed — and that was its fair and natural meaning — to invest the officer with a discretion either to pursue the legal course or to omit it, as, in his judgment, he thought best. Nothing can be plainer, than that in such case the officer ought not to be held responsible for the strict performance of his official duty, for he is permitted by the creditor to forego it if he see fit.

To exonerate the officer from liability the directions given by the creditor must release the officer from pursuing the strict line of official duty, and authorize him to do something which he was • not in law bound to do ; they must have influenced the conduct of the officer (though this is presumed where they have any such tendency, and it is for the creditor to rebut the presumption,) and the loss of the debt must result from his following such instructions, and not from his neglect or fault, when acting in the line of his legal duty. It is not every act of interference by the creditor, that wholly releases the officer thereafter from pursuing his official duty. Officers often act to some extent under the directions of the creditor in attaching property, and still in other respects, and subsequently in theimacts in regard to the property attached, are liable strictly as officers. Thus, if the creditor direct the officer to attach certain personal property of the debtor, and not to attach real estate or any other personal property, it is clear that the officer woqld not be liable for neglect in' omitting to attach the real estate or other personal property excluded by the creditor, even though the property attached should be wholly unproductive of security to the creditor. But if the property so attached belong to the debtor and is sufficient to secure the debt, and the officer by his neglect allows it to return to the possession of the debtor so that it is lost to the creditor, clearly for such neglect the officer should be held liable. Such direction exonerates the officer from attaching any other property than what the creditor specifies, but it does not exonerate him from attaching and safely keeping that. If he neglect safely to keep the property attached, he can not excuse his neglect by saying, that if not specially instructed to attach personal property he might have attached real estate. Assuming to attach personalty, he must have understood that he was acting as an officer, and would be held liable as such for the attachment he actually made and that he was exonerated only as to what he was directed not to take.

The direction in this case, not to attach real estate, exonerated him from not taking real estate ; but it did not release him from his liability as an officer for the two thousand barrels of Hour which he did attach. It would be absurd to say that he understood because he was told not to attach realty, that he was therefore acting merely as the servant of the plaintiff in attaching and holding the flour, and that his official responsibility as constable was ended. In Howes v. Spicer, 23 Vt. 508, the creditor directed the officer to attach fifty kegs of powder and nothing else. The debtor had other property. The loss arose from the officer’s not taking and retui ning as attached the fifty kegs of powder. Held, such directions did not exonerate the officer.

In Mason v. Ide, 30 Vt. 697, the creditor gave directions which if pursued would have released the officer ; but the officer instead of following them did what he was not authorized to do. The court held that he must use reasonable judgment in regard to the meaning of the instructions and follow them in order to be released, and as the loss arose from not following the instructions strictly he was still liable as an officer. The rule of law is well expressed by Judge Morton in Dunham v. Wild, 19 Pick. 520: “If the plantiff does interfere, he cannot recover against the officer for any loss which might result from following his advice or directions.”

2. The letter of Mr. Maeck and the deposition of Taylor, taken together, show that the instructions given by the attorney to the officer were equivalent to this, “ for the personal property you attach you may take receiptors, and before you remove it you may go to the debtor and see if he will furnish receiptors.”

Did this language justify the officer in understanding that he could safely omit any official duty, or be released thereby from his official liability for the ultimate responsibility of the receiptors in case he allowed the property to pass into their hands ? We think not.

The taking of a receipt for property attached is a common mode of perfecting an attachment. It saves expense to all the parties, relieves the officer of the care and custody of the property and gives the creditor all he seeks for by his attachment, viz: security for his debt. It is at once so convenient and so safe a mode of securing all the purposes of an attachment that it has been adopted universally in practice ; and though not authorized by statute is recognized in law as an official act having definite and well settled rights, duties, and obligations. Officers usually take good receipts whether instructed to do so or not. It is so much a matter of course that an officer will do so, that no one at all conversant with such business would either ask for or expect any directions on the subject. Hence the mere general remark that the officer may go to the debtor and see if he will furnish receiptors before moving the property, would not be ordinarily understood as discharging the officer from his strict official duties and liabilities. It would only be understood as expressing that wish in regard to the attachment which officers and creditors generally feel and express ; that nothing should be done to make cost, or annoy or disturb the debtor, if the attachment can be perfected in the usual way by a receipt satisfactory to the officer and for which he is willing to be ultimately responsible.

If more than this was meant, the creditor or the attorney would advise as to the sufficiency of the receiptors ; and the officer would require directions as to the receiptors he might accept.

We see nothing therefore in the letter of Mr. Maeck and the deposition of Mr. Taylor to' show that the officer could have been misled in the least by the language or letter of the attorney to think that he was not to be held liable for the property to be attached to the same extent, and with the same strictness as to the ultimate responsibility of the receiptors, as if he were acting without any other instructions than those contained in the writ.

III. The demand upon the officer was all that the nature of the case admitted. To require demand at Detroit would be unreasonable and impracticable.

IV. As to the defence that the receiptors were solvent, and likely to remain so, when taken by the officer, the recent decision in The Bank of Middlebury v. The Town of Rutland, 33 Vt. 414, makes it unnecessary to dwell upon that point. The principle of that decision must control this. ^* Judgment affirmed.

* See Gilbert et ux. v. Crandall, ante p. 188.—Reporter.