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Corning & Horner v. Southland

3 Hill & Den. 552 Court N.Y. Sup. Ct. English

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p. 552
Corning & Horner vs. Southland, sheriff &c.

Headnote

In order to maintain an action against a sheriff for neglecting to return a ji.fa., it is not necessary that he be first ruled or notified to make return.
The attorney of tire plaintiff has power, under his original retainer, to authorize an officer holding a fi. fa. issued by him, to depart from the regular and ordinary course of executing it; and this power continues for at least a year and a day after judgment perfected. Per Cowen, J.
Whether, since 2 R. S. 286, § 26, 2 d ed., the attorney’s power over the Ji.fa. does not continue for the two years within which he may acknowledge satisfaction, quere.
Where the attorney gives a deputy sheriff special authority as to his couirse of proceeding on a fi. fa.—e. g. to hold it over the return day—the sheriff’s responsibility ceases, and the deputy becomes the agent of the party for whom the attorney acted. Per Cowen, J.
Though the deputy deviate from the line of his duty in respect to a ji.fa. without special authority, yet if the attorney who issued it subsequently adopt the act, his client cannot hold the sheriff responsible. Per Cowen, J.
An assumed agent is not responsible to the principal for his acts, even though they turn out to be injurious, provided the principal has once adopted them. Per Cowen, J.
The adoption of one part of a transaction done under an assumed agency, enures as an adoption of the whole. Semble.
A deputy sheriff having omitted to return a ji.fa., received a letter from the attorney written before the retain day, proposing an arrangement with the defendant, provided he would give a note, the requisites of which were speeEed. A note was obtamed by the deputy and sent to the attorney; but not conformmg to the requisitions of the letter, it was sent back. Held, in an action against the sheriff for neglectmg to return the ji.fa., that he was liable.
Otherwise, had the deputy complied with the terms proposed m the letter within a reasonable time after receiving it.
p. 553
Case, tried at the Schoharie circuit, October 27th, 1841, before Cushman, C. Judge. The action -was brought against Southland, sheriff of Wayne county, for not returning a fi. fa. issued on a judgment in this court in favor of the plaintiffs, Corning & Horner, against one Copp. The fi. fa. was issued by W. D. White as attorney for the plaintiffs, with directions endorsed to levy and collect $688,22. It was made returnable sixty days from the receipt thereof by the sheriff. One Warren, a deputy of the defendant, received the fi. fa. on the 24th of December, 1840. On the 11th of January, 1841, the deputy wrote to Mr. White that he had levied on personal property sufficient to secure the debt, and had it receipted. The deputy wrote again on the 17th of February, 1841, informing Mr. White that he had received $200 on the execution—viz. $100 on the 27th of January, and $100 on the 12th of February 1841,—enclosing a certificate of deposite for the amount, and saying he should receive more soon. A letter was produced written by Mr. White to the deputy on the 18th of February, 1841, and post-marked as of that day at Albany, in which the former stated that Copp had promised to pay $200 more in a few days and that he requested time &c. The letter further stated that the plaintiffs would accept a note for $300, with at least two good endorsers, provided Copp paid the balance of the execution ; the note to be at four months. Mr. WThite suggested Doct. Benedict as one of the endorsers of the note, and that it should be made payable either at the Chautauque County Bank or the City Bank of Albany. The letter then proceeded thus: “You may tell him (Copp,) to draw such a note and get it endorsed to your satisfaction, and then send it to E. Corning & Co., (the plaintiffs ;) and if they are also satisfied with the note, and he pays the balance due &c., I will then direct you to return the execution "satisfied, by letter to that effect. But we cannot interfere with the execution; for there being a levy made, the judgment must be satisfied.” This letter was received by the deputy, as he testified, about the 22d or 23d of February, 1841. A note was procured and
p. 554
sent March 7th, 1841, payable to the order of the plaintiffs ; which, being objectionable for that reason, was returned to the deputy in a letter from Mr. White. This letter bore date the 11th. of March, 1841, and, after stating the foregoing and other reasons for declining to accept the note, concluded thus: “ The negotiation is at an end. I sue th.e sheriff to-morrow.” The declaration in this suit was accordingly filed the next day. On the 24th of April, 1841, the defendant was served with a notice to return the fi. fa. in twenty days ; and it was returned within that time.
The defendant’s counsel insisted that the letter of Mr. White, dated February 18th, 1841, took effect from the time it was mailed ; and the judge was requested so to charge the jury. He declined, however, but charged the jury that the principal question for them to decide was, as to the time the deputy (Warren) received the letter. If they believed it reached him before the return day of the fi. fa. it would be their duty to find for the defendant. If they found otherwise, their verdict should be for the plaintiffs. Verdict for the plaintiffs, $524,04. The defendant now moved for a new trial on a case.
C. Tucker, for the defendant.
W. Tracy, for the plaintiffs.

It was the duty of the defendant to return the fi. fa. by the sixtieth day after he received it, (Sess. Laws of 1840, p. 334, § 24,) unless the return was dispensed with by the plaintiffs or their attorney; and he was liable to an action for his neglect to discharge that duty, without first being called upon to make the return by rule or notice. (Burk v. Campbell, 15 John. 456 ; Fisher v. Pond, 2 Hill, 338 .) In this case the return day was the 23d of Feb-r ruary, 1841; and the writ was not returned on that day. The, jury have found that the letter from the plaintiffs’ attorney of the. 18th of February,, the main thing relied on as a dispensar

p. 555
tion, did not reach the hands of the defendant’s deputy till after the 23d. The cause of action was then perfect, unless, as insisted, the letter took effect, retroactively, as of the 18th, or as of some day previous to the 23d.

There is no doubt that an attorney’s authority over a.fi. fa. or other execution continues for at least a year and a day after judgment perfected in favor of his client; and, for some purposes, still longer. (Lusk v. Hastings, 1 Hill, 656 , 659, and the cases there cited.) He may now even acknowledge satisfaction at any time within two years. (Id. ; 2 R. S. 286,2d ed. § 26.) It would not perhaps be too much, since the statute, to say that his control over the execution should continue for the two years, without a new warrant; but there is no question in this case on the time. The plaintiff’s counsel takes his stand on the narrowness of the attorney’s power ; and denies that he can authorize a deputy to depart from the regular and ordinary course of his duty. His power in this respect is, however, too well settled to admit of question. (Gorham v. Gale, 7 Cowen, 739, 744 ; Walters v. Sykes, 22 Wend. 566 .) The effect of giving special authority is also considered in the cases cited. Pro tanto the deputy is made the special agent of the party by whom the authority is given, and the relation gf principal and agent between him and the sheriff is broken. The latter, therefore, ceases to be liable. The relation of principal and agent arises between the party and the deputy. See Madison County Bank v. Keller, ( 2 Hill, 117 ,120,) and the several cases decided in Massachusetts which are mentioned in note (a) at p. 120.)

Taking it, then, as the learned judge did at the trial, that Mr. White’s letter of the 18th of February contained an authority to hold the execution over the return day, the case may, I think, be put in this way : The deputy assumed the office of a private agent, and held over on the presumed assent of the plaintiffs or their attorney. This he had no right to do at the time ; but, like an act of any other person assuming to be agent, or of an agent going beyond his authority, the

p. 556
act or excess may be legalized and rendered valid by subsequent adoption. Suppose, for instance, no letter had been written by Mr. White, but he had distinctly approved of the delay. Such approbation certainly would not have enured directly to discharge a claim or cause of action founded on the neglect; but it would have had that effect indirectly, on the maxim omnis ratihaMtio retrotrahitur, et mandato priori cequiparatur. The maxim was thus applied to discharge or rather limit a claim in Armstrong v. Gilchrist, (2 John. Cas. 424 ; see Liverm on Ag. 44, 47.) Indeed the cases are entirely familiar and very numerous of men assuming to act for others on the emergency of the occasion even wrongfully and injuriously, being saved from an action by the party interested acquiescing in the transaction as done for his benefit. Such an effect is much favored by the law; and it is even said that an adoption of the transaction in part is an adoption of the whole. (Pal. on Ag. 172, et seq. and cases there cited, Lloyd’s ed.) The judge, I think, erred, therefore, in putting the case to the jury on the question whether the letter arrived before or after the 23d of February.

This, however, is giving the defendant, I apprehend, little more than the benefit of an abstract proposition ; for it is difficult to see how the acts of Mr. White can be understood as amounting to an adoption of the deputy’s neglect. The letter of the 18th of February specified the terms on which the plaintiffs were willing to arrange the execution. . I do not regard the protest against interfering with the course of the execution ; for the letter fairly implied an authority to suspend all legal proceedings till the lapse of a reasonable time for procuring the proposed note and submitting it to the plaintiffs for their approbation. The authority was conditional—a note with endorsers, to be approved by the plaintiffs. Had such a note been procured within a reasonable time, and sent for approval, I think there was a further implication that time should also be allowed for an answer, before a suit could be brought against the sheriff; and so the suit might in such case be objectionable as

p. 557
premature. But the condition on which legal proceedings were to be suspended was never complied with by the deputy at all. When the letter mentioned security by an endorsed note as the condition, it must be faken to have intended a note not merely endorsed in form, but one so framed as to he properly endorsed ■ in other words, a note taken according to the ordinary rules of business, and available, per se, against the endorsers. A full and adequate levy had been made, of which the plaintiffs were informed by the deputy. Their consent was to a good endorsed note payable at one of the two banks mentioned, in such form as to bring cash, without its being essential to add their own names unless they pleased. Accidentally the note was not so framed ■, and it would not have been cashed by a bank or any prudent man without the plaintiffs’ names as first endorsers. This was a substantial disregard of the condition. It must be taken as never complied with at all up to the time of the last letter ; and it was then too late to mend the matter. A party may always annex such condition to the execution of a power as he pleases. The condition here was, in short, that a note in a certain form should be procured in a reasonable time. That was not done; ^nd the case therefore stood when the suit was commenced just as if no negotiation had ever begun.

Further forbearance would no doubt have resulted in a correction of the mistake, thus proving beneficial to both parties j and this action seems to have been brought in a pet. Such haste may be regretted ; but I have found it impossible to discover among the circumstances any materials of which a legal defence can be predicated.

New trial denied.

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