Driscoll v. Place , 44 Vt. 252 ( 1872 )

The opinion of the court was delivered by

Redfield, J.

This action is trover, for the alleged conversion of a bay mare. The defendant, as sheriff, took the mare from the plaintiff’s possession upon a writ of replevin in favor of Peter McEnany against this plaintiff. Afterwards, the plaintiff demanded the mare of the defendant, and was refused ; and this is the conversion alleged.

The court charged the jury that “ the writ of replevin, under which the defendant took and held the mare in question, was void, and furnished no justification to the defendant. That he stood in the same position in reference to this property as though he had no precept in his hands.” And to this charge, and the refusal of the court-to direct a verdict for the defendant, the defendant excepted.

The process, under which defendant justifies, alleges that the “ plaintiff had caused the mare, the property of said McEnany, to be attached, on a writ in favor of the plaintiff against McEnany, returnable, &c.” And the officer is directed “ to cause such goods and chattels so attached to be replevied and delivered to the said Peter McEnany.”

The defendant in his return certifies that he gave the plaintiff a copy of said replevin writ, with his return thereon endorsed. But this statute provision for the replevy of “ goods attached,” is not a suit inter partes. There is neither plaintiff nor defendant. The persons interested could not be impleaded, nor could any issue be joined. The statute does not require service of the writ to be made on any party, but the officer is directed “ to make return of this writ, together with the bond, as aforesaid, to the same court” i. e., “to the clerk of the court to which the original attachment was made returnable; and such clerk shall receive and keep the same on file.” Gen. Stats., 319, §§ 8 and 10. It is a proceeding merely for the compulsory receipt of property attached. Green v. Holden, 35 Vt., 315.

This is a,proceeding unknown to the common law, and authorized by statute in the specific case u when the goods or chattels of any defendant are attached on mesne process, returnable to any county court.”

' The bond required, in case of replevin of goods attached, recites that such goods have been attached, on a writ returnable to the county court, nest to be held, &c.; with the condition that if the party making the replevin “ shall return the said goods and chattels, so that they may be taken on an execution, which. may be issued on a judgment, to be recovered on the aforesaid attachment, or shall otherwise discharge said judgment, within sixty days from the rendition of the same: then this obligation to be void, otherwise of force.”

In this case the goods had not been attached by the plaintiff. He had the possession, not under process, but as owner. The defendant took the mare from his possession, filed a bond with the clerk of the county court, to be obligatory when the plaintiff’s attachment should be adjudicated. The plaintiff having made no attachment, of course it could never be adjudicated. The conditions of the bond could never be broken, and, as we think, it is a mere nullity. Frothingham v. Howard, 1 Aik., 139. The defendant delivered the mare to McEnany, who sold it, and, for anght the case discloses, the beast and its rider have gone beyond the reach of the plaintiff. The defendant claims immunity, on the ground that his writ was regular, and he was not bound to look beyond the face of the process.

We have no disposition to question or modify the well established rule of law, that an officer has immunity for acts done in the execution of legal process. The safety of the officers, and the good order and peace of society require it. But when the court have no jurisdiction over the subject matter, the process gives no protection to the officer executing it. 2 J. L. C., 1027. And “ every one who acts by virtue or under color of the law, shall be compelled to determine at his peril whether the law has conferred the authority which he assumes to exercise.” Dynes v. Hoover, 20 Howard, 65-80; Wise v. Withers, 3 Cranch, 331; Brown v. Compton, 8 T. R., 424, 432. In the last case, Geose, J., says: “ I take it to be extremely clear that if a court not having jurisdiction order an officer to do an act, and the officer obey the order or decree, he is not justified.” It has been held in some cases that an officer would not be liable in tort, if he take the goods of A., on a writ of replevin against B., for the reason that “ the command of the writ is express, and points to specific chattels.” Foster v. Pettibone, 20 Barb., 350. But this doctrine was questioned in Sampson v. Reynolds, 14 Barb., 506. And in Allen v. Carey, 10 Wend., 349, it was fully conceded that trespass would lie against an officer in such a case. Also in Skilton v. Winslow, 4 Grey, 441, 2 Greenl. Ev., 496-7, and cases there cited. It would be against all analogies of the law that if an officer, in executing process, should do wrong to the person or property of a stranger, that the law gave no remedy or redress for such wrong. And as this beast had never been attached, the law conferred no authority and gave no jurisdiction to any officer or person to wrest the possession from the owner in exchange for a bond that was void, and if valid, utterly unavailing to the plaintiff. If a party holds property merely to respond an attachment, he is bound by law to surrender it to the owner upon a bond or receipt, whose sufficiency has been officially established ; but the law does not require him to surrender his oion property in exchange for a worthless bond.

This is not a case of irregularity in the execution of a process, but where there was no jurisdiction of the subject matter. The mare was subject to no attachment that could be released. There was no suit pending in the county court in which this precept and bond could be “ filed ” by the clerk. The mare, not having been attached, could not be replevied as a chattel attached. There was no subject matter or thing on which the writ could operate. The defendant might as properly claim immunity for seizing a defendant’s last cotv on a writ of attachment, on the ground that the writ commanded him to attach, as to claim protection under this writ for seizing this mare. In the one case the property is not attachable, in the other it is not repleviable, and both acts would be tortious.

We find no error, and the judgment of the county court is affirmed.