Majority
p. 122John W. Sleight v. William Leavenworth and John D. McGregor. (Before Dube, Campbell and Hoffmah, J. J.) December term, 1855.
Headnote
A mortgagee of chattels, having seized them for satisfaction of his demand, the parties in possession claiming under the mortgager, executed an instrument by which they agreed to return and deliver the goods to him, on demand, or to pay the sum of $671.38 claimed to be due. An assignee of the mortgagee recovered against the parties the sum of $500, and costs, in a suit upon this instrument. After execution against the property unsatisfied, an execution against the persons of the defendants was issued, under which one of them, the present plaintiff, was arrested, and gave bail for the limits. At the end of about nine days, he was discharged, and Ms bond cancelled, on the ground that the judgment did not warrant the arrest.Held, in an action of false imprisonment brought against the plaintiff in such former suit, and Ms attorney, that each was responsible to the plaintiff for damages.
Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, upon the ground of an erroneous refusal of the Judge to nonsuit the plaintiff when the testimony was closed, and for error in'his charge.
One Augustus Hurd executed a mortgage to Henry S. Rosenkrantz, on the 17th of October, 1850, upon certain personal property, to secure payment of the sum of $671.88, the amount of his promissory note given to Rosenkrantz.
This note, with the accompanying mortgage, was assigned to one James T. Lecte about the time of its date.
The mortgage was duly filed on the day of its date.
About the 21st of December, 1850, certain property came into the possession of J. Mills, and J. W. Sleight, (the present plaintiffs,) then partners in trade, under the name of Mills & Sleight, by a transfer of the mortgager, Hurd, to pay them a debt of five hundred dollars; and that sum appears to have been taken as the value of the goods.
In January, 1851, Lecte, through an agent, seized property in the possession of Mills & Sleight, alleging it to be the property mortgaged, or part of it.
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Mills & Sleight then executed the following instrument. It was given to prevent the removal of the goods.
“Whereas James T. Lecte, by his agent, B. D. Wisner, has seized on certain property mortgaged by Augustus Hurd to H. S. Rosenkrantz, and by said Rosenkrantz assigned to said Lecte, which property consists of (enumerating the articles)—and whereas said property is now in the possession of the undersigned. How, therefore, we, the undersigned, agree to safely keep and deliver to the said Lecte, or to his said agent, the said property, on demand, as they now exist, or to pay the said mortgagee six hundred and sixty-one dollars and thirty-eight cents, and all proper costs, charges, and interests, which have or may accrue thereto. Add, also, two puncheons of rum, &c., upon the terms above expressed. Dated January 9, 1851.”
Before the 31st of January, 1851, the note and mortgage of Hurd, with this agreement, were assigned by Lecte to William Leavenworth, one of the present defendants. And on that day he commenced an action upon the agreement against Sleight & Mills, in the Court of Common Pleas. The result of that action was a judgment in his favor, on the 15th of January, 1852, for the sum of five hundred dollars damages, and eighty-six dollars and fifty cents, for costs. The present defendant, McGregor, was the attorney of Leavenworth in that action.
Upon this judgment, an execution was first issued against the property of the defendants therein, and upon being returned unsatisfied, an execution against the persons was issued. Under this, the present plaintiff, J. W. Sleight,was arrested, and gave bonds for the jail limits. The arrest took place on the 21st of January, 1853, and the party was discharged by an order of a Judge of the Common Pleas, on the 1st of February of the same year. For this false imprisonment the present action is brought.
The Judge charged the jury, at the trial, that the arrest of the plaintiff upon an execution against his person, upon the judgment which had been proved, was wholly unauthorized, and that the defendants were both liable in the action.
An exception was duly taken; and upon this, and an exception to the refusal of the Judge to dismiss the complaint, the case came before the court.
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The jury found a verdict against both defendants for one hundred dollars damages.
J. L>. McGregor, for appellants.
H. iS. Lincoln, for respondent.
It cannot be disputed that the action in the Common Pleas, and the recovery, were exclusively upon the' instrument or bond executed by Mills & Sleight. The action was, therefore, upon a contract merely. The difference between the sum mentioned in the bond, and the recovery, viz., $500, arose, no doubt, from the referee’s finding the latter sum to be the value of the goods actually taken by Mills & Sleight. There is nothing apparent on the record, or otherwise, in the case, to show that the present plaintiff could have been arrested under the 179th section of the Code. (See § 288.) It was a plain case of false imprisonment.
The client is responsible for the acts of his attorney, affecting the rights of the parties to the record. Assuming that Leavenworth was wholly ignorant of the issuing of the execution, he is yet responsible for an arrest under an execution which was not warranted by any judgment. (Taylor v. Trask, 7 Cowen, 261.)
The liability of the attorney, who was the direct agent to authorize the arrest, is still more clear. (Deyo v. Van Valkenburgh, 5 Hill, 242 .)
The judgment must be affirmed, with costs.