Streeter v. Frank , 4 Chand. 9 ( 1851 )

KNOWLTON, J.

It appears in tbis case, that the defendant, William T. Allen, was a constable, and held an execution against the plaintiff, Aaron Streeter, who was perfecting an appeal from the judgment on which execution issued, when Allen demanded payment of the execution, which bore date December 10, 1851, issued upon a judgment rendered the same day in an action of replevin. This was the next day, December 11. The attorney of Streeter informed Allen of the fact. Allen then told the said attorney that he would take the papers for the appeal to the justice who rendered the judgment, and that nothing more should be done on the execution. The attorney replied to Allen, that unless he was perfectly willing to take the papers to the justice and receive from him a certificate of the allowance of the appeal, he would send a man specially for that purpose. Allen replied that he was going directly past the house where the justice lived, and could just as well do the business as not, and would do it; and would take the certificate from the justice, and see that no further proceedings should be had. Allen took the papers and delivered them to the justice, .but refused to take the certificate of the allowance of the appeal. He then proceeded to execute the execution, and returned it satisfied on the 15th of December.

Allen agreed to act as the agent of Streeter. There was no law against Streeter appointing him his agent, and none against Allen accepting the agency. Having accepted it, he was bound to execute it in good faith. In failing to perform his trust, and proceeding to execute the writ, he committed a fraud in fact and in law upon his principal, and must respond in damages. He cannot be permitted to take advantage of his own fraud.

It is true that an officer is protected by process regular and legal on its face, whatever he may have heard going to impeach it. The writ is his protection ; but this rule cannot apply in this case, where fraud is so apparent.

We are of opinion that the court below erred, and that its judgment should be reversed.

Judgment reversed.