Bank of Middlebury v. Town of Rutland

33 Vt. 414

• Court: Supreme Court of Vermont
• Decided: November 15, 1860
• Status: Published

Opinion

Aldis, J.

The main question in this case is as to the true construction of our statutes requiring the • officer, who serves a wtíí of replevin of goods attached, to .take a bond with sufficient surety. What is the measure of the sufficiency required ?

Three views are taken upon this subject.

I. That the surety must be apparently responsible, the officer acting in good faith, and making diligent and reasonable inquiry. This is<th'e position of the defendants.

II. That it is not enough that the surety be apparently responsible, but that he must be really so ; so that though in good credit and apparently solvent, still if in fact he is not solvent to the amount required, the officer is liable. This was the rule of law adopted by the court below, and to which exception is taken*

III. That the surety must not only be really good at the time bond is taken, but also up to the time of judgment, so that the plaintiff shall be able to recover satisfaction if he pursue and obtain judgment on the bond. This is the doctrine contended for by the plaintiffs.

The question is an important one in practice. Counsel have been most thorough in their research, both as to the ancient and modern law of replevin. We have endeavored to examine the subject with care, and though not entirely agreed upon the point* are still enabled to concur so as to decide the case.

The statute of Westminster (18 ed. 1) provided that the sheriff should take the plaintiff’s pledges for the pursuing the suit, and for a return of the property. It did not use the word sufficient, or in any way specify the liability of the sheriff for insufficiency of the pledges; except as may be inferred from the clause “ if any take pledges otherwise, he shall answer for the price of the beasts.” Under this statute the ancient rule in England appears to have been that the sheriff should be liable for the sufficiency of the bail to respond the final judgment. If the sheriff took insufficient pledges, he was charged “ as if he had taken no pledges at all.” 2 Co. Inst. 340; Corcaren v. Lethridge, 2 H. Bla. 40.

But since the adoption of the statute of 11 Geo. 2d c. 19, the rule has been modified and become more lenient towards the officer. It is now held that if the sureties are apparently responsible when taken, the sheriff, acting in good faith and with reasonable diligence and inquiry, is not liable, though they are in fact irresponsible. This was so held in Hindle v. Blades, 5 Taunt. 225; and that case appears to have been uniformly followed in the English courts. Sutton v. Wayte, 8 Moore 27, (17 E. C. L. 96;) Scott v. Waithman, 3 Stark. 168, (14 C. L. 176;) Jeffery v. Bustard, 4 Ad. & Ell. 823 (31 E. C. L. 194.)

In this country the question seems rarely to have arisen. It would seem that it was held in Massachusetts, that if the sureties “ were reputed to be of sufficient ability,” the sheriff was not liable. Dewey, J., in Rice et al. v. Hosmer, 12 Mass. 130. But the point is not expressly so ruled in any of the cases cited by the defendants ; nor have we been able to find any. So it would seem to be in Connecticut, 1 Root 168, “ the bond must be apparently good.”

In Pennsylvania the rule was established at an early day, that the sheriff was liable for the sufficiency of the sureties at the end of the suit. 1 Dall. 349; 14 S. & R. 23; 3 Watts & S. 538.

It is to be observed, however, that in all these cases the courts of Pennsylvania have protested against the harshness and severity of the rule they felt required to recognize.

It is obvious that if the sheriff is to be responsible, not only for the sufficiency of the sureties -at the time he takes their bond, but for their remaining sufficient till the end of the suit, he is thereby made liable for the debt, though at the time he takes the bond (and he is required by law to take it) he discharges his whole duty, and does all that he can do to secure, and does in fact, at the time, fully secure the debt of the creditor. This makes him responsible for all the risks, misfortunes and vicissitudes of business that may befall another, over whose conduct and affairs he can have no control; to guarantee his solvency not only when taken, or for some fixed period thereafter, but for the whole indefinite period of time through which the principal litigation may be prolonged.

If a bond is really good, and likely to remain so, the sheriff can not refuse it without making himself liable to be sued by the creditor. And yet by this harsh doctrine, if he does take it, that same creditor may afterwards sue him for doing the very thing which he also might have sued him for refusing to do.

The letter of the statute, sec. 13, certainly very strongly favors this extreme doctrine. It seems to point directly to this result. But when we consider' how unreasonble and unjust the result is, we can not regard such an interpretation as being within the real intent of the Legislature.

The object of the replevin bond is to furnish the creditor a security to stand in the place of the property attached. It bears the same relation to the property attached that bail or mesne process does to the person of the debtor when arrested. One secures the return of the person ; the other of the property. If, upon final judgment, there is no return, the surety becomes liable to the creditor for the debt which the return of the person or property would have secured. As the statutes relating to bail on mesne process, and to sureties on replevin bonds, have thus the same end in view ; and as officers have in substance the same official obligations, courts, acting upon this analogy, have endeavored, in their decision in regard to the liability of bail,-and of sureties, and of sheriffs for the insufficiency of bail and sureties, to be guided bv a common principle. See Sparhawk v. Bartlett, 2 Mass. 188.

Now in this state the liability of the sheriff for taking insufficient bail on mesne process, has been fully considered and finally determined. It is not enough that the surety is apparently good, he must be really so, and such as will probably continue good to answer the demand. This was decided long ago, in Hazzard v. Slade, 1 D. Chip. 199; and reaffirmed in Harrington v. Bogue, 15 Vt. 179. It is obvious that the judge in the trial of this case in the county court, intended to follow these decisions ; the charge is almost in the words of the decision in Hamard v. Slade. We think the rule adopted by the court below is the right one. It harmonizes our decisions upon a subject where every rule of reason and analogy requires them to be the same. It is in accordance with what we deem to be a legislative construction of the old statute of 1797, by the act of 1806, in reference to bail on mesne process.

It is consistent too with the spirit of our attachment law — to secure the creditor by substituting a bond really good for the property attached. Less than this would impair the security. The more stringent rule adopted in Pennsylvania, would make the bond better than the property; for the property by waste, lapse of time, fluctuation of markets, and expense in keeping, often greatly depreciates in value, and becomes an insufficient security.

It is urged by the defence, that the English law, that the sheriff who, acting with reasonable diligence, and upon due inquiry, takes a surety apparently good, shall be protected against further claim, is the more reasonable rule. If it were a new question, we might hesitate whether that doctrine ought not to he adopted, for it seems to be just and fair; and exacts of the sheriff as much and no more than he can perform. But its adoption now would, we think, tend to unsettle the law in analogous cases. In practice, we think the operation of the two rules would almost always be the same; for it would be very rare that an officer, who has the right to insist upon unquestionable security, and who should make due inquiry and use all reasonable diligence, would be deceived into taking sureties ostensibly good, but really worthless. This rule, adopted by the court nearly half a century ago in regard to bail on mesne process, has not been found by experience to be either impracticable or oppressive upon officers. Should further experience prove it to be so, it would doubtless be modified by legislative action.

We conceive that “the default or neglect,” which makes the officer, liable, is the criterion also of the liability of the town for the officer.

The defendants claimed that Williams, as the attorney of the plaintiffs, assented to the constable’s taking the bond, and that such assent discharged the constable from liability. Clearly it would; and so the court charged.

But if Williams was attorney for both the plaintiffs and the railroad company, as he was, then whether his assent to the taking of the bond would bind the. plaintiffs, would depend upon the capacity in which he acted, or gave the constable to understand he acted- If the constable did not even understand that he was attorney for the plaintiffs, he could not understand that he was acting for them. Hence the charge of the court, that the constable should have been informed or in some way have known that Williams was the attorney of the bank, was correct; for without such information he could not have supposed that the plaintiffs were assenting to the bond; but must have understood, that he was dealing alone with the railroad company.

The fact that Williams was the attorney for the bank in the suit in which the engines were attached, did not prevent his being the attorney for the railroad company in the writ of replevin. So long as he acted as attorney for the railroad company, and did not assume or appear to act as the attorney of the bank, his action would bind only the railroad company. If Gibson, the constable, knew that Williams was attorney for the bank, as well as attorney for the railroad company, then it was his duty to ascertain in what capacity he was acting in the matter of the bond. Williams might draw the bond and cause it to be signed and delivered to Gibson in his capacity as attorney for the railroad company; indeed if he drew the writ of replevin, the more natural presumption would be that he was so acting. But if he said or did any thing to give Gibson to understand that he was acting for the plaintiffs in that matter, then his interference would bind the bank and release Gibson. This was the substance of the charge, and we find no error in it in this respect.

In regard to the Mendon lands the bill of exceptions is obscure both as to the evidence offered and the application of the charge to the evidence. It is said “ no evidence was introduced showing any actual possession of or title to a part of the lots deeded by Moses M. to George W. Strongand this is all that appears in regard to any evidence to show possession of the Mendon lands. From this we may reasonably infer that there was proof to show actual possession of some of the lots so deeded by Moses M. to George W. Strong.

As to wild lots of which no possession was taken, the mere proof that George Strong had a deed on record of such lots shows no title in him. To make such showing proof of ownership, it should be accompanied either with proof of possession corresponding to the deed, or with proof of a paper title. Upon this point the charge very properly stated that an ancient deed on record conveyed no title of itself, unless it appeared that the grantor had some right or title to convey. What the charge was on the subject of possession corresponding with and accompanying a deed on record does not clearly appear ; counsel seem to differ in their arguments and briefs, as to the character of the charge. If the court below could have been understood by the jury that possession by Strong or his grantors of lands of which he had a deed, would not be evidence of his ownership unless the possession was continued for fifteen years, the charge would be erroneous. But we do not feel at liberty to so construe the exceptions. The bill states that the court gave very full instructions to the jury on all the points the case called for, and such as were satisfactory, and. unless error plainly appears, we should not be justified to assume it upon inference or doubtful expressions.

The opinion of Mr. Woodbridge, as to what would be the future net profits of the Rutland & Washington Railroad, could only be a conjectural estimate of future speculative profits, — a kind of proof quite too uncertain and remote to guide the minds of jurymen in determining what was the actual responsibility of the railroad company five years before.

The case has been argued on behalf of the defendant, as if the court had excluded evidence to show that Strong was reputed and generally believed to be solvent at the time the bond was given. The exceptions say, the defendants claimed that if the sureties were apparently good at the time the bond was signed, Gibson was not chargeable, though in fact they were insufficient; and, “ with this view” offered evidence to show that Strong was in good credit and apparently responsible, but that the court held the rule to be that the surety must not only be ostensibly but really good at the time, and excluded the evidence. The evidence as offered for this purpose was inadmissible. If offered to show that he was really responsible, we think it should have been admitted. A man’s credit — his reputation among his neighbors and those who have dealings with him for solvency — is evidence tending to show that he is in fact, solvent. Our experience in life and business shows that men who are generally reputed and believed to be responsible by those who deal with them generally are so in fact. Men in business act and give credit upon such reputation. The very words, “ in good credit,” “ in bad credit,” refer to such general opinion and belief. Now this fact, that a man is generally reputed and believed to be solvent or insolvent, may be proved like any other fact, and is admissible as tending to establish the existence of the tact so generally believed to be true. In 2 Phil. Ev. (C. & H. notes) p. 702, this kind of evidence, though in the nature of hearsay, is stated to be admissible and as being the best evidence of the state of a man’s property ; and the opinion of the court in State v. Cochran, 2 Dev. N. C., is cited very fully and directly to this point. In Scott v. Waithman, 3 Starkie 170, such evidence was admitted. In Hard v. Brown, 18 Vt. 90, such evidence was also held admissible.

It is also objected that Baxter, a witness who testified as to the amount and value of Strong’s real and personal estate, and told all he knew about it, and that he knew of no other property of Strong’s, was excluded from answering this further question, “ from your knowledge of the property of Mr. Strong, what do you think he was worth on the 16th of May, 1854.” This raises the question, whether the opinion of a witness, who is acquainted with the state and value of a man’s property, and who has testified as to all the facts which he knows upon the subject, must be admitted as to the solvency or insolvency of the person. If the opinion is founded upon the facts he has testified to, it would seem to be but the mere summing up of his testimony, which the jurors could do as well as the witness. Such we deem to have been this case. He does not appear to have testified to any facts, or to have known any facts beyond those he had already stated, and hence his opinion would be a mere summing up of his previous statement. Whether he should do this, must be in the discretion of the court.

The case is distinguishable from Hard v. Brown, and Sargeant v. Blodgett, as in those cases the witness would seem to have' stated his opinion upon other facts, less clearly to be shown than the ownership of tangible property, and difficult to be described, other than by opinion.

Judgment affirmed.