Wright v. Marvin
| Decision Date | 06 June 1887 |
| Citation | 9 A. 601,59 Vt. 437 |
| Parties | A. L. WRIGHT v. R. D. MARVIN |
| Court | Vermont Supreme Court |
TROVER for a certain mare. Trial by jury, April Term, 1886, ROYCE Ch. J., presiding. Judgment on a special verdict for the defendant. The case appears in the opinion.
Judgment of the County Court reversed, and judgment rendered upon the verdict for the plaintiff to recover one hundred and seventy-five dollars, and the interest thereon from April 1 1883, damages and his costs.
C. G Austin and Farrington & Post, for the plaintiff.
This is not a new question. It has been repeatedly held that if an officer would justify under returnable process he must show its return, else he is a trespasser ab initio. Freeman v. Blewitt, 1 Salk. 409; Middleton v. Price, Stra. 1184; 1 Wils. 17; Bac. Ab. 450, 451; Wilder v. Holden, 24 Pick. 8; Williams v. Babbitt, 14 Gray, 141; Russ v. Butterfield, 6 Cush. 242; Munroe v. Merrill, 6 Gray, 238; Briggs v. Moran, 31 Vt. 441; Ellis v. Cleveland, 54 Vt. 440; Eaton v. Cooper, 29 Vt. 444.
An officer in the service of process must follow strictly the requirements of the law. Lamb v. Day, 8 Vt. 407; Barnard v. Stevens, 2 Aik. 429; Evarts v. Burgess, 48 Vt. 206; Hall v. Ray, 40 Vt. 576.
Wilson & Hall, H. Burt, and Geo. A. Ballard, for the defendant.
The taking of the bond was sufficient protection to the defendant in the replevin suit, and the defendant's remedy is upon the bond and not against the officer. Driscoll v. Place, 44 Vt. 258; Watson v. Watson, 9 Conn. 140; Cannon v. Sipples, 39 Conn. 505.
The plaintiff had a complete remedy upon the bond. 97 Mass. 316.
The Massachusetts statute is almost identical with ours. Mass. Gen. St., c. 143, s. 3; R. L., s. 1219. To the same effect is Persse v. Watrous, 30 Conn. 139; Nichols v. Standish, 48 Conn. 321.
One of the conditions of the bond was broken upon the plaintiff's failure to enter his replevin suit. Persse v. Watrous, supra.
A judgment of return is only necessary when the suit is entered and disposed of by nonsuit or trial. R. L., s. 1233; Collamer v. Page, 35 Vt. 387.
At most, the failure of the defendant to return the bond to the clerk of the court was a mere nonfeasance, for which neither trespass nor trover will lie. Stone v. Knapp. 29 Vt. 503; Pierson v. Gale, 8 Vt. 509; Hale v. Huntley, 21 Vt. 147.
Trespass on the case for any mere nonfeasance of the deputy will only lie against the sheriff. Abbott v. Kimball, 19 Vt. 551; Hale v. Huntley, 21 Vt. 147.
The defendant, as deputy sheriff, seized the plaintiff's mare by virtue of a writ of replevin in favor of Pease and Arsino. He took a proper bond, delivered the mare to Pease & Arsino, and returned the writ and bond to the attorney of the plaintiff in the replevin. Neither writ nor bond was returned to the court to which the process was made returnable, but the proceedings came to an end without any settlement between the parties, or any consent thereto by the now plaintiff.
In answer to the present action the defendant attempts to justify the the taking of the mare (which, by the verdict, then belonged to the plaintiff) under the replevin process.
There is some confusion in the cases touching the proper application of the rule that a subsequent abuse of an authority given by the law will make the abuser a trespasser ab initio. It is often said that a mere nonfeasance will not work such result; but just what acts or omissions are properly classed as nonfeasances is not quite clear from the cases. A sheriff is protected by his process, if issued by competent authority, so long as he follows its mandate. In the execution of it he is bound to observe the commands of the law, whether expressed in the process itself or in the general law applicable to its execution.
In this case the defendant was commanded in the process to serve and return it according to law. Section 883, R. L., commanded him to return the process to the court to which it was made returnable. The command to serve and return is not divisible, so that the officer may return without service, or serve without return, and be pro tanto protected.
Unless the parties assume control of the process, the duty of the sheriff is in legal significance one single act, comprehending all the steps essential to a legal execution of the process to its final return into court. In the action of replevin this rule is peculiarly applicable, as the rights of the defendant cannot be fully preserved otherwise. If the property is wrongfully taken in replevin the defendant is entitled to a judgment for its return. Such judgment is not within his reach unless the process is returned to court; and without such judgment no damages for the non-return of the property are recoverable in an action upon the replevin bond. Collamer v. Page, 35 Vt. 387. The recovery of the property in specie oftentimes is the only complete satisfaction the defendant can obtain. It is no answer to say that the practice of officers, sanctioned by long usage, to return writs to the attorney of the plaintiff, was followed by the defendant. He was commanded to return his process according to law, not according to the prevailing custom. If he saw fit to disregard the law and observe the custom, he took the risk of the return by the attorney to the court.
The return to the court is an essential and vital element in defendant's justification.
In Bacon's Ab. tit. Trespass, 450, it is said: "If a sheriff have not returned a writ, which ought to have been returned, he becomes, although this be only a nonfeasance, a trespasser ab initio as to everything which has been done under the writ."
In Buller's Nisi Prius, 23, it is said that "whenever an officer justifies an imprisonment under a writ, he must show that the writ was returned."
To the same effect are the following: Rowland v. Veale, Cowp. 18; 1 Ld. Raym. 632; McPherson v. Pemberton, 1 Jones Law 378; Girling's Case, Cro. Car. 446; 2 Roll Ab. 563, pl. 18; Middleton v. Price, 2 Strange 1184.
In Ellis v. Cleveland, 54 Vt. 437, on demurrer to a plea justifying an arrest upon returnable process, which omitted to set up a return of process, ROWELL, J., said: "If an officer to whom returnable process is directed would justify under it, he must show its return, else he is a trespasser ab initio; for he is commanded to return the writ, and he shall not be protected by it unless he shows that he has paid due and full obedience to its command." The same doctrine is recognized in Briggs v. Mason, 31 Vt. 433.
Chief Justice SHAW, in Munroe v. Merrill, 72 Mass. 236, 6 Gray 236, says that if an officer would justify under legal process "it is...
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