Lawrence v. Rice

Shaw, C. J.

The defendant is responsible for the official acts of his deputy, or acts done by color of his office. To that extent only has the sheriff intrusted him in the execution of his duties. So, where, before the statute authorizing the sale of goods attached on mesne process, the deputy made such sale by consent of parties, it seemed to be considered by the court as a clearly settled point, that he did not act officially, though he acted lawfully ; he executed an authority given him by the parties interested in the property, and not an authority incident to his office. Penniman v. Ruggles, 6 Mass. 166. Rich v. Bell, 16 Mass. 294. It would seem to follow as a necessary consequence, that if a deputy sheiiff should violate the trust thus reposed in him, he would be ' liable, like any other agent or factor commissioned to act for another, to his employer, but not as an officer; because not acting, or professing to act, within the scope of the authority conferred on him by his principal. Nor would the sheriff be responsible for his neglect.

In the present writ and declaration, the plaintiff proceeds against the sheriff, solely, for the default of his deputy, Foster. We believe a motion was once made by the plaintiff for leave to amend, by charging that the loss arose from the default of the defendant’s deputy, Moore, which was allowed by the court, on terms; but the terms were not complied with, and the amendment was not made. Has there then been such default on the part of Foster, as to render the defendant liable under the maxim respondeat superior ? It is conceded that Foster attached personal property on mesne process, on the original writ, then being the defendant’s deputy, but that, before judgment was rendered, he was out of office. Of course he had no authority to seize the property on execution. What then is the duty of an officer who has attached personal property on mesne process? Unless the property is sold on mesne process, according to the law as it now stands, (Rev. Sts. c. 90,) or the attachment is otherwise dissolved by taking bond, he is to keep it safely until after judgment. If, within thirty days after judgment, he being still in office, the execution is delivered to him for service, he must take the property on the execution. If not in office, he must deliver the property, on demand, to any officer qualified and authorized to take and dispose of it. But if judgment is rendered for the defendant, or no execution is deliveied to him, or demand made on him, within thirty days, it is his duty to deliver the property back to the debtor. If he does not keep the property safely, and render it on legal demand, he is responsible for the default, as an official misfeasance ; and therefore, if he have delivered it to the original debtor, or any other person, though on a satisfactory receipt, it is at his own peril, and such receipt is for his own indemnity, and does not exonerate him from his liability to the creditor. Phillips v. Bridge, 11 Mass. 242. Howard v. Smith, 12 Pick. 202.

We have stated these as the general duties of an attaching officer. They appertain to his office, and if he fails in the performance of them, the sheriff is answerable. But the question recurs, what is the liability of the sheriff, after the deputy is out of office ? It seems to be a well settled rule of law, a rule of the common law, recognized and confirmed by statute, that when an executive officer has begun a service, or commenced the performance of a duty, and thereby incurred a responsibility, he has the authority, and indeed is bound, to go on and complete it, although his general authority, as such officer, is superseded by his removal, or his derivative authority terminated by the determination of the office of his principal. His authority attaches by the commencement of the service, and will be superseded only when it is •ompleted, whether it be a longer or a shorter time. Welsb v. Joy, 13 Pick. 477. The attachment of goods on mesne process is the commencement of a service, and subjects the officer to a responsibility which can only be terminated and discharged by a disposal of the property in some of the modes above stated; and therefore, although he goes out of office before execution is issued, and cannot serve the execution, yet he is bound to keep the property safely thirty days, to be delivered on a demand by an officer charged with the service of the execution; but, if not so demanded, then to be delivered to the debtor. We do not mean to say, that if such ex-officer should happen to retain the custody of the goods more than thirty days, and no new lien interposed, another officer might not seize them on the execution; but they would be held, in such cases, by force of the new seizure on execution, and not of the old lien created by the attachment on mesne process. But the property not having been demanded within thirty days, at which time it would have been the duty of the deputy to surrender it to the debtor, and especially, as he had, before judgment, in fact surrendered and delivered up the property, upon taking a receipt as his indemnity thprefor, the court are of opinion that his official duty, and the official responsibility of the sheriff for the performance of that duty, were at an end.

But if there was any ground to hold, upon the evidence, that there was a demand on Foster, for the property, within thirty days, the court are of opinion that the answer given to it, at the trial, was right. It has already appeared that a demand must be made by a person authorized by the plaintiff to serve the execution. Strictly speaking, Moore was not authorized by the plaintiff to serve the execution. Had Foster remained in office, it may well be admitted, that by sending the execution to him, with orders, or for the purpose of obtaining satisfaction, it would have been a constructive demand on him to take the attached property. But he was out of office, and his only duty was, to keep the property till seasonably demanded by another officer. It was at the risk of the creditor to assume, without inquiry, that Foster remained in office. He might have sent the execution to the high sheriff, or have employed an agent to direct the service of the execution. But he did neither. Whether Foster was bound, or even authorized, so far to act for the plaintiff, as to give the execution to another officer, and authorize and direct him in the service of it, is a question which we have no occasion to decide; but if he assumed to act for the plaintiff, and the plaintiff afterwards ratified and adopted his acts, he must be deemed to have affirmed his doings in whole. He cannot affirm them in part, and disaffirm them in part. Had the plaintiff been on the spot himself, and a demand had been made on Foster for the goods, and Foster had offered him the receipt for the goods, instead of the goods themselves, it would have been at his option to accept it or not. A case might exist, in which it would be greatly for his interest to accept it. The receipter acknowledged the demand within thirty days, and therefore, by force of his contract, acknowledged himself liable for the damages, which were measured by the amount of the execution. Suppose, then, that the deputy and the sheriff had both been insolvent, and the receipter a man of property ; the security of the receipter would have been the best. But such acceptance of the receipt must be deemed as a waiver and discharge of the liability of the attaching officer. It was a substitute for the attached property. It was the consideration on which the attached property was surrendered and put beyond the officer’s custody and power. It was the security and - indemnity, by means of which the officer, if charged, would raise the money to meet his liability to the creditor. The acceptance of the receipt, therefore, would be a waiver or discharge of all claim on the officer for not keeping the goods. Then, if Moore was not the plain™ tiff’s agent to obtain satisfaction of the execution, and, for that purpose, to demand the goods of Foster, as the attaching officer, there was no agent authorized to make such demand, and then the plaintiff must fail; or if Moore was such agent, then his acceptance of the receipt, which was a valid, and might have been the most available, security, was equivalent to such acceptance by the plaintiff; and the attaching officer, and his principal, the sheriff, were not liable.

Judgment for the defendant, on the nonsuit.