Tenney, J.
The defendant was qualified as sheriff of the County of Franklin, on January 25, 1850, and Albert Calden as his deputy on Feb. 2, 1850. An action of assumpsit was commenced by I. Fenderson Woodman, plaintiff, declared to be of Boston, in the Commonwealth of Massachusetts, against the “ President, Directors and Company of the Wilton Manufacturing Company,” on Nov. 17, 1849, and service of the writ therein made on the same day by Calden, acting as the deputy of a former sheriff. The action was for the County of Penob-scot, and at a term which began its session on January 1, 1850 ; the same was entered and the defendants therein made no appearance but were defaulted. Judgment was rendered on Feb. 12, 1850, and execution issued thereon, the 15th of Feb., and both were in legal form. By authority of this execution, levy was made by Calden on the plaintiffs’ real estate on Feb. 28, and on personal property on March 26, 1850.
This action is trespass quare clausum fregit for the acts of the defendant by Calden his deputy, in making the levies upon the property of the plaintiffs. And the questions involved are, 1st. ¥711611161’ the officer had the right to take the property of the “ Wilton Manufacturing Company,” the corporate name of the plaintiffs, upon the execution against the President, Directors and Company of the Wilton Manufacturing Company, on the hypothesis,, that the judgment and execution were valid. 2d, Whether the execution under the facts proved and offered to be proved, is a protection to the defendant, for the acts done by the deputy in making the levies. 3d, Whether the proceedings of the deputy under a valid execution were according to legal provisions, and effectual to transfer the property from the plaintiffs.
The report of the case shows, that upon such evidence adduced at the trial as was admissible for the purpose, the [438]*438Court are to decide the question, as one of fact, whether the writ and judgment in favor of Woodman were against the plaintiffs, if by such decision there can be a final determination of the cause upon all the points raised.
1. The plaintiffs were incorporated as the “ Wilton Manufacturing Company.” All Acts of incorporation shall be deemed public Acts, R. S. c. 1, § 2. Of such courts of the same State are bound to take judicial notice. 1 Greenl. Ev. § 6. No corporation can be created with power to hold real estate or personal property in this State, excepting by the legislative power thereof.
The “ Wilton Manufacturing Company” was incorporated on March 23, 1838, for the purpose o^ manufacturing cotton, linen and wool, in Wilton, in this State; and evidence was introduced, which was satisfactory, that the charter of that corporation was accepted, and an organization took place under it, and business was continued to be done in obedience to its provisions. No corporation in the State bears the name of the “ President, Directors and Company of the Wilton Manufacturing Company,” under any Act of the State, and there is no evidence, that there is any corporation which has assumed or been called by that name. It appears, that on Feb. 28, 1838, the “Wilton Upper Mills Manufacturing Company” was incorporated for the purpose of manufacturing wool, wood, cotton, iron and steel, at Wilton Upper Mills, in Wilton. But there is no evidence that any organization ever t ook place under the Act; but on the contrary, witnesses, who had full opportunity to know the fact if it existed, state, they have no knowledge that any other Manufacturing Company in the town of Wilton was organized, excepting that of the “Wilton Manufacturing Company.” Consequently no mistake has been made by the defendant, acting by his deputy, in taking the plaintiffs’ property, for the purpose of applying the same or the avails thereof towards the satisfaction of an execution against any other corporation in Wilton, having a legal ex istence.
The plaintiffs’ agent gave a promissory note in their behalf [439]*439under the name of the “Proprietors of the Wilton Manufacturing Company.” This shows that the plaintiffs’ agent was not careful always, to use the corporate name. The balance of the execution, remaining unpaid, after the completion of the levies complained, of was paid by the plaintiffs’ authorized agent. The evidence is plenary, that the original suit in favor of Woodman was designed to be against the plaintiffs, both by him and the attorney who made the writ and prosecuted the action. The service of the writ was intended by Calden to be returned as made against the plaintiffs. It cannot be doubted as a fact, that the writ in the suit, and the judgment and execution thereon were really against the plaintiffs, under a name differing in terms from that given to them in the Act of incorporation.
2. The plaintiffs deny that the execution in the hands of Calden was a protection to the defendant, for Calden’s acts in making the levies, under the facts attempted to he shown, and excluded, in connection with all the facts reported. And they insist, that the Court in the county of Penobscot had in truth no jurisdiction of the original action, and that it was by the fraud of the plaintiff therein, known to Calden, and participated in by him, that the judgment was there obtained. And for this they rely upon the fact, that the plaintiffs were sued by a name not authorized by the Act of incorporation; that the plaintiff in that suit was a resident of Wilton, and that he procured Calden to make service in a mode which would communicate no information of the suit to the plaintiffs in this action. If that suit was in the name of one, who had his residence in Wilton at its commencement, or if the service had been essentially defective, and could not have been used by an amendment, or if the defendants therein were sued by a wrong name, the suit might have been abated in proper proceedings upon a plea of abatement in appropriate form and seasonably filed. But it dees not follow, that on proof of these facts, the judgment and execution can be impeached, so that they furnish no ground of defence for the defendant.
The Court of the county of Penobscot had jurisdiction of [440]*440the subject matter of the suit, and of the defendants in that suit, if the corporation was in this State, and the plaintiff resided elsewhere. Upon the face of the proceedings, the plaintiff resided in Massachusetts, and the defendants were incorporated to do business in this State. The Court therefore, under the law of the State, and facts apparent upon the writ, had jurisdiction of the parties. And there being no appearance to controvert the facts thus appearing, the jurisdiction was legally exercised.
The Court having jurisdiction of the subject of the suit, and the parties, — the writ, the service and the evidence was before it, and having taken jurisdiction, the judgment was effectual between the parties, notwithstanding the defect in the service of the writ, and could not be reversed, excepting upon a writ of error. Granger v. Clark, 22 Maine, 128 ; consequently the judgment was also sufficient to authorize an officer to make service of an execution issued upon it, as long as it was in full force and not reversed. No obligation rests upon a ministerial officer, to look beyond a precept in his hands as a sufficient legal warrant to obey its commands, and it would be absurd to hold him accountable for any error in the judicial proceedings of the Court which awarded it.
Free access — add to your briefcase to read the full text and ask questions with AI
Tenney, J.
The defendant was qualified as sheriff of the County of Franklin, on January 25, 1850, and Albert Calden as his deputy on Feb. 2, 1850. An action of assumpsit was commenced by I. Fenderson Woodman, plaintiff, declared to be of Boston, in the Commonwealth of Massachusetts, against the “ President, Directors and Company of the Wilton Manufacturing Company,” on Nov. 17, 1849, and service of the writ therein made on the same day by Calden, acting as the deputy of a former sheriff. The action was for the County of Penob-scot, and at a term which began its session on January 1, 1850 ; the same was entered and the defendants therein made no appearance but were defaulted. Judgment was rendered on Feb. 12, 1850, and execution issued thereon, the 15th of Feb., and both were in legal form. By authority of this execution, levy was made by Calden on the plaintiffs’ real estate on Feb. 28, and on personal property on March 26, 1850.
This action is trespass quare clausum fregit for the acts of the defendant by Calden his deputy, in making the levies upon the property of the plaintiffs. And the questions involved are, 1st. ¥711611161’ the officer had the right to take the property of the “ Wilton Manufacturing Company,” the corporate name of the plaintiffs, upon the execution against the President, Directors and Company of the Wilton Manufacturing Company, on the hypothesis,, that the judgment and execution were valid. 2d, Whether the execution under the facts proved and offered to be proved, is a protection to the defendant, for the acts done by the deputy in making the levies. 3d, Whether the proceedings of the deputy under a valid execution were according to legal provisions, and effectual to transfer the property from the plaintiffs.
The report of the case shows, that upon such evidence adduced at the trial as was admissible for the purpose, the [438]*438Court are to decide the question, as one of fact, whether the writ and judgment in favor of Woodman were against the plaintiffs, if by such decision there can be a final determination of the cause upon all the points raised.
1. The plaintiffs were incorporated as the “ Wilton Manufacturing Company.” All Acts of incorporation shall be deemed public Acts, R. S. c. 1, § 2. Of such courts of the same State are bound to take judicial notice. 1 Greenl. Ev. § 6. No corporation can be created with power to hold real estate or personal property in this State, excepting by the legislative power thereof.
The “ Wilton Manufacturing Company” was incorporated on March 23, 1838, for the purpose o^ manufacturing cotton, linen and wool, in Wilton, in this State; and evidence was introduced, which was satisfactory, that the charter of that corporation was accepted, and an organization took place under it, and business was continued to be done in obedience to its provisions. No corporation in the State bears the name of the “ President, Directors and Company of the Wilton Manufacturing Company,” under any Act of the State, and there is no evidence, that there is any corporation which has assumed or been called by that name. It appears, that on Feb. 28, 1838, the “Wilton Upper Mills Manufacturing Company” was incorporated for the purpose of manufacturing wool, wood, cotton, iron and steel, at Wilton Upper Mills, in Wilton. But there is no evidence that any organization ever t ook place under the Act; but on the contrary, witnesses, who had full opportunity to know the fact if it existed, state, they have no knowledge that any other Manufacturing Company in the town of Wilton was organized, excepting that of the “Wilton Manufacturing Company.” Consequently no mistake has been made by the defendant, acting by his deputy, in taking the plaintiffs’ property, for the purpose of applying the same or the avails thereof towards the satisfaction of an execution against any other corporation in Wilton, having a legal ex istence.
The plaintiffs’ agent gave a promissory note in their behalf [439]*439under the name of the “Proprietors of the Wilton Manufacturing Company.” This shows that the plaintiffs’ agent was not careful always, to use the corporate name. The balance of the execution, remaining unpaid, after the completion of the levies complained, of was paid by the plaintiffs’ authorized agent. The evidence is plenary, that the original suit in favor of Woodman was designed to be against the plaintiffs, both by him and the attorney who made the writ and prosecuted the action. The service of the writ was intended by Calden to be returned as made against the plaintiffs. It cannot be doubted as a fact, that the writ in the suit, and the judgment and execution thereon were really against the plaintiffs, under a name differing in terms from that given to them in the Act of incorporation.
2. The plaintiffs deny that the execution in the hands of Calden was a protection to the defendant, for Calden’s acts in making the levies, under the facts attempted to he shown, and excluded, in connection with all the facts reported. And they insist, that the Court in the county of Penobscot had in truth no jurisdiction of the original action, and that it was by the fraud of the plaintiff therein, known to Calden, and participated in by him, that the judgment was there obtained. And for this they rely upon the fact, that the plaintiffs were sued by a name not authorized by the Act of incorporation; that the plaintiff in that suit was a resident of Wilton, and that he procured Calden to make service in a mode which would communicate no information of the suit to the plaintiffs in this action. If that suit was in the name of one, who had his residence in Wilton at its commencement, or if the service had been essentially defective, and could not have been used by an amendment, or if the defendants therein were sued by a wrong name, the suit might have been abated in proper proceedings upon a plea of abatement in appropriate form and seasonably filed. But it dees not follow, that on proof of these facts, the judgment and execution can be impeached, so that they furnish no ground of defence for the defendant.
The Court of the county of Penobscot had jurisdiction of [440]*440the subject matter of the suit, and of the defendants in that suit, if the corporation was in this State, and the plaintiff resided elsewhere. Upon the face of the proceedings, the plaintiff resided in Massachusetts, and the defendants were incorporated to do business in this State. The Court therefore, under the law of the State, and facts apparent upon the writ, had jurisdiction of the parties. And there being no appearance to controvert the facts thus appearing, the jurisdiction was legally exercised.
The Court having jurisdiction of the subject of the suit, and the parties, — the writ, the service and the evidence was before it, and having taken jurisdiction, the judgment was effectual between the parties, notwithstanding the defect in the service of the writ, and could not be reversed, excepting upon a writ of error. Granger v. Clark, 22 Maine, 128 ; consequently the judgment was also sufficient to authorize an officer to make service of an execution issued upon it, as long as it was in full force and not reversed. No obligation rests upon a ministerial officer, to look beyond a precept in his hands as a sufficient legal warrant to obey its commands, and it would be absurd to hold him accountable for any error in the judicial proceedings of the Court which awarded it.
It is not insisted for the plaintiff, that the fraud of Calden, unknown to any other officer, who might have had the execution, would make the latter a trespasser for the same acts, which Calden is complained of for having done. But a right to recover in this action is contended for, because the execution was the fruit of Calden’s fraudulent agency, and he was requested not to take the property thereon. Hence, as is contended, the acts of Calden were unauthorized and amounted to a trespass at the time they were committed, and if a trespass in him, it was equally so in his principal the defendant.
The only fraud of Calden, was committed in the attempt to make the service of the original writ. That was at a time, when no relations of sheriff and deputy existed between the defendant and Calden, and the former could not then be responsible for the acts of the latter, or at any subsequent time, [441]*441for acts done by Calden before his appointment by the defendant. For such acts, the liability would be upon the deputy and the sheriff under whose commission he acted. Those acts were the cause of the injury charged as having been done to the plaintiffs. Can the defendant be made responsible for the effect, which has resulted from this cause, through a solemn judgment of a court having jurisdiction, because this effect has taken place during his administration ? If so, and the defendant should be compelled to make payment of damages for the injury arising from such cause, the former sheriff could not be reached; and it would be unreasonable that he should escape liability for the fraud perpetrated by his deputy in his official acts, and that this liability should be shifted to the defendant and borne wholly by him, on account of his appointment of the same man to the same office, who levied the execution, obtained upon the judgment in the action, in which the fraud was committed. It cannot be admitted, that the levy of an execution upon a judgment of a court of competent jurisdiction is a trespass, or a legally required act, in the sheriff, according as it is in the hands of his deputy, who aided by a fraud, in the procurement of the judgment, while a deputy of another sheriff in the one case; or in the hands of the sheriff himself, or another deputy in the other. The judgment and execution cannot be treated as matters of such fluctuating power, that in the hands of the sheriff they impose upon him the duty imperatively to obey its direction, and in the hands of his deputy such obedience makes the principal a trespasser, and subjects him to the same liability to damages, as the same acts would do, unauthorized by any warrant whatever.
It was held in Sims & al. v Slocum, 3 Cranch, 300, that judgments of courts of competent jurisdiction, although obtained by fraud are not absolutely void; and all acts performed under them as respects third persons are valid. In the opinion of the Court, C. J. Marshall says, “ a sheriff who levies an execution under a judgment fraudulently obtaiued is not a trespasser.” “ When the person, who has committed [442]*442the fraud attempts to avail himself of the act so as to discharge himself of a previously existing obligation, or to acquire a benefit, the judgment thus obtained is declared void. But it is believed, that no case can be adduced where an act which is the legal consequence of a judgment, has in itself created a new liability, even with respect to the party himself, much less with respect to third persons, who do not participate in the fraud.”
3. Were the proceedings of the defendant’s deputy, under the execution, wanting in conformity to legal requirements ? In the return he states that one appraiser was chosen by him, another by the creditor, and the third by himself for the debtors, “ the said President, Directors and Company of the Wilton Manufacturing Company, by their Secretary, Elijah D. Robinson, refusing to choose any person.” By the authority of the case of Fitch v. Tyler, [see page 463 in this volume,] the return is not essentially defective in this particular.
By R. S. c. 117, § 6, an officer may postpone the sale of personal property not exceeding six days after the day appointed ; and he is required to give the same notice of the postponement, provided for the original sale which is by posting notice in two public places in the town or place of sale, at least forty-eight hours prior to the sale. Sect. 5. The officer is not prohibited in terms from making a postponement for a time less than forty-eight hours; and if this should be done he could not give the notice, as it is required in a postponement for a greater length of time. But it becomes unnecessary in this case to discuss the effect of a postponement for a time less than forty-eight hours. The postponement seems from the return, to have been made in form and in substance at the request of the plaintiffs’ agent; hence cause of complaint on their part is removed.
It is found by inspection of the certified copies, that the return upon the execution of the sale of the personal property is not authenticated by the signature of the officer. This defect is fatal, as it respects the personal property, unless it can be supplied. And a motion is made, that the officer [443]*443be permitted to amend his return in this particular. The amendment would come within the rule adopted in the case of Fairfield v. Paine, 23 Maine, 498. There is sufficient to render it probable, that there is an accidental omission. No design could be entertained to enter the return at length upon the back of the execution, of the seizure, the giving of notice, the adjournment and the final sale, specifically described unless the proceedings had been accordingly. On satisfactory proof being made to the Court, of the truth of the return, the officer is authorized to amend by affixing his signature to the return. If this should be done, the plaintiffs are to become nonsuit.
Wells, Howard and Appleton, J. J., concurred.