Rogers v. The Marshal
68 U.S. 644 (1863)

Annotate this Case

U.S. Supreme Court

Rogers v. The Marshal, 68 U.S. 1 Wall. 644 644 (1863)

Rogers v. The Marshal

68 U.S. (1 Wall.) 644

ERROR TO THE CIRCUIT COURT FOR

THE DISTRICT OF WISCONSIN

Syllabus

1. The marshal is not responsible on his official bond for the act of his deputy in discharging sureties on a replevin bond in any case where the attorney of the plaintiff in that suit, though he gave no direct and positive instructions to the deputy, has still done that which was calculated to mislead the deputy and to induce his erroneous act. And in the consideration of a question between the deputy and attorney, it is to be remembered that the former is but a ministerial officer, unacquainted with the rules which discharge sureties from their obligations, while the latter, in virtue of his profession, is supposed to be familiar with them.

2. Where an instruction, though not in the best form of words, is sufficiently intelligible, and has been rightly interpreted by the jury in reference to the evidence, a reversal will not be ordered in the indulgence of a nice criticism.

Page 68 U. S. 645

3. It is the duty of counsel, excepting to propositions submitted to a jury by the court below, to except to such propositions distinctly and severally, and although the court below may err in some of the propositions -- which in this case it did -- yet if the propositions are excepted to in mass, the exception will be overruled, provided one of the propositions be correct, which was the case here.

4. Where the decision of a question depends at all upon the fact, whether the plaintiff in a suit had assented to an act which was a deviation from the actor's strict line of duty, and of a kind for which the plaintiff could bold him responsible, it is proper enough to ask what the plaintiff's attorney said after the act was done, the case being one where an adoption by the plaintiff of the act illegally done concluded his remedy.

Rogers had issued a writ of replevin in the district court for the district above named against a certain Remington and one Martin to replevy a quantity of lumber. By the Code of Wisconsin, which was adopted in the district court as its rule of proceeding, it was provided that on "a written undertaking executed by one or more sufficient sureties," approved &c., for the prosecution of the action for the return of the property to the defendant, the marshal should take the same, and deliver it to the plaintiff, unless &c. In the replevin suit just mentioned, the deputy marshal, one Fuller, took a bond and delivered the property, but the bond taken by him, on suit brought upon it, was decided to be void, [Footnote 1] and was now confessedly so. A suit -- the present action, to-wit, in the court below -- was now brought against the marshal and his sureties, on his official bond, the ground of the suit being the mistake of the deputy marshal, Fuller, in taking a bond that was void instead of taking one that was valid. The defense set up was that the deputy, Fuller, acted in the matter under instructions from one Hopkins, the attorney of the plaintiff in the replevin suit. And one point involved in the suit accordingly was whether Fuller, the deputy, had so acted.

That point rested on the testimony of the attorney, Hopkins, and the deputy, Fuller, both of whom were witnesses in the suit.

Page 68 U. S. 646

Fuller, the deputy, swore as follows:

"After I took the lumber, Remington came to me and inquired the form of a bond. I gave him a form, and the next day he brought a bond signed by himself and Martin. I took the bond to Mr. Hopkins, who was attorney for the plaintiff in the replevin. He said he would not have Remington on the bond at all. I took the bond back to Remington and told him what Hopkins said. Remington took the bond, and the next day he returned it with the name of John Keefe on it. I took the bond to Hopkins, who said he did not know anything about Keefe, but that if I could get Andrew Proudfit's name on the bond, to take it. I told this to Remington, who took the bond again, and brought it to me with Proudfit's name on it. I said to Remington, 'I cannot receive the bond, your name is on it.' He said he would take his name off, and I said that would be in accordance with my instructions by Hopkins. I handed the bond back to Remington. He went to the desk, erased his name in my presence, in all the places where it now appears erased, and brought it back to me in its present shape. No one was present when the erasure was made but myself, my clerk, and Remington."

The testimony of Mr. Hopkins was to the same general effect, he stating that when the bond was brought to him in the first instance, he told Fuller "the statute requires the bond to be signed by sureties; and I do not want Remington's name on it." Hopkins had never seen the bond after Fuller took it away, nor heard of the erasure until he heard of it casually, and long after it was made.

In the course of the examination of the deputy marshal, the defendant's counsel asked him (under objection, overruled, to the question) what Mr. Hopkins said afterwards about the bond. The witness answered,

"Mr. Hopkins told me a month afterwards that it was necessary to have Remington's name on it; that he was then mistaken in the code; he thought it was the same as the New York Code. He said the New York code did not require the defendant's name to be on the bond, and the code of this state did. He gave that as a reason why he would not have Remington's name on the bond. The marshal knew nothing about the

Page 68 U. S. 647

transaction. He was away from town at the time. I was acting under the direction of Mr. Hopkins, the attorney of the plaintiff, who had charge of the whole thing."

The evidence being closed and it having been made to appear that Mr. Hopkins was not only attorney of the plaintiff in the replevin suit, but was also attorney for the plaintiff in the suit brought on the replevin bond, the court charged as follows:

"If the deputy marshal in the execution of the writ of replevin was in the due service of the writ in taking the bond on the part of the defendants to retain the property, and the altered bond was accepted by the deputy marshal in pursuance of instructions or the interference of the attorney for the plaintiff, then these defendants are not to be held liable."

"The bond given to the deputy in the first instance, with the name of Remington on it as principal, was valid so far as it related to his being a party or obligor on said bond. It is for the jury to determine whether the erasure was made in consequence of the interference of Mr. Hopkins, the attorney."

"The interference or consent of the plaintiff's counsel may be inferred in part from the fact of his afterwards acting on the bond as valid, and bringing suit thereon."

The bill of exceptions, after reciting this charge, as above given, proceeded in these words:

"To which said instructions and charge to the jury the plaintiffs by their counsel then and there, in open court, did except, according to the course of practice of this court."

In regard to the form of the exceptions it is necessary here to say that a rule of the Supreme Court [Footnote 2] directs that

"Judges of the circuit and district courts do not allow any bill of exceptions which shall contain the charge of the court at large to the jury, in trials at common law, upon any general exception to the whole of such charge, but that the party excepting be required to state distinctly the several matters in law in such charge to which he excepts, and that such matters

Page 68 U. S. 648

of law and those only, be inserted in the bill of exceptions, and allowed by the court."

The questions now before this Court were:

1. Did the court err in any of its instructions?

2. If so, can the plaintiff in error, in the face of the rule of court already mentioned and the practice of the court, profit of the error on a bill so general as the one here?

3. Was the objection to the question asked of the deputy marshal as to what Mr. Hopkins said after the bond was taken, and the lumber given up, rightly overruled?

Page 68 U. S. 650

MR. JUSTICE DAVIS delivered the opinion of the Court as follows: [Footnote 3]

1. It is unquestionably true that a marshal is answerable for the misconduct of his deputy. If Fuller, the deputy, who served the writ of replevin in the case of Rogers v. Remington & Martin and took the statutory bond, erased the name of the principal without the direction of someone having authority, he violated a plain duty, and his principal can justly be held liable. The officers of the law, in the execution of process, are obliged to know the requirements of the law, and if they mistake them, whether through ignorance

Page 68 U. S. 651

or design, and anyone is harmed by their error, they must respond in damages. But this case involves the extent of the power of an attorney to control and direct the execution of process, and the liability of the marshal where the default of his deputy has been induced by the conduct of the attorney.

The attorney is the agent of his client to conduct his suit to judgment, and to superintend the execution of final process. It is true that he cannot discharge the defendant from execution without the money is paid to him, [Footnote 4] but his authority is complete to control the remedy which the law gives him to secure or collect the debt of his client. [Footnote 5] And if the client suffers by the ignorance or indiscretion of the attorney, the officer shall not be prejudiced, for the attorney may give such directions to the officer as will excuse him from his general duty. [Footnote 6] The attorney can give such general instructions to the officer as he may deem best calculated to advance the interests of his client, and if followed (erroneous though they be), they will bind his client and exonerate the officer. [Footnote 7]

But it is said that Hopkins, the attorney, never instructed Fuller to erase Remington's name after the execution of the bond, which, being done without the knowledge and consent of the sureties, discharged them.

It is clear that no direct and positive instructions were given, for if there had been, in view of the power of the attorney to make the officer his agent, no controversy could have arisen. But the true question is this: did Hopkins give such directions to Fuller as were calculated to mislead him, and must have induced the taking of the defective bonds? If he did, the marshal is not chargeable. After Fuller had taken the property in the replevin, case he went to Hopkins

Page 68 U. S. 652

with a bond signed by Remington, the principal, and Martin or Keefe as sureties. Fuller swears that Hopkins said "he would not have Remington on the bond at all," while the testimony of Hopkins is that he "did not want" Remington's name on the bond. The two statements are not essentially different. Each would clearly enough convey the idea that Remington's name must not be on the bond. Hopkins excepted to the sufficiency of the surety and told Fuller that if he would procure Proudfit's name in addition to the name already on it, he would be satisfied. Remington was present at the interview, and took the bond away, and the following morning brought it to Fuller with Proudfit's name. Fuller told Remington that he could not receive the bond, because his name was on it. Remington said that he would take his name off, and Fuller replied that if he did so, it would be in accordance with the instructions received from Hopkins. Remington's name was then erased.

Now it is true that Hopkins did not direct Fuller to erase Remington's name from the bond after it was executed without the knowledge and consent of the sureties. But it should be remembered that Fuller was a ministerial officer and unacquainted with the rules which discharged sureties from their obligations, while Hopkins was supposed to be familiar with them. Fuller knew that Hopkins objected to the retention of Remington's name, while he was satisfied with Proudfit's in addition to that of Keefe, and, as the bond complied with the wishes of Hopkins, he had a reasonable right to infer that it was satisfactory. That Fuller acted under this belief is evident from the fact that he did not, until some length of time, say anything further to Hopkins, and there is nothing in the record to question the bona fides of either Fuller or Remington.

Hopkins had the right to refuse to direct Fuller at all in relation to the manner in which the bond should be executed, but he had no right to say anything which would necessarily tend to mislead him. If he had told Fuller

"I will give you no instructions or advice; you are the officer, and must determine for yourself all questions that arise in

Page 68 U. S. 653

the performance of your duty,"

then Fuller, having been properly cautioned, could have no right to complain. And it is fair to infer that he would at once have sought legal advice, and thereby avoided the difficulties that occurred. But Hopkins chose another course, and what he said was well calculated to mislead Fuller. Any officer of common mind and unacquainted with legal proceedings would have concluded from the conversation that the bond would be satisfactory if the additional surety was obtained and Remington's name left off, and it is clear from Fuller's testimony that Hopkins mistook the requirements of the Wisconsin Code. Hopkins thought the New York and Wisconsin Codes were alike, but afterwards ascertained his error, and that he Wisconsin Code required the name of the principal on the bond, while the New York Code did not. This admission relieves the case of all difficulty. It explains the reason of Hopkins in refusing the bond with the name of Remington on it, and accounts for the erasure which was made under the direction of the officer. If Hopkins chose to direct at all about the manner in which the bond should be executed, it was his duty, both to his client and the officer, to have taken the entire supervision of it. Having thought proper as an attorney to exercise his right to direct what names should go on the bond, he cannot, nor can his client, complain that the officer, in literally fulfilling his wishes in that regard, mistook the law and destroyed the efficacy of the instrument. When Fuller produced the bond with Remington's name on it and Hopkins told him that he must have another surety and would not have Remington's name on the bond, why did he not also inform him that the validity of the bond required that no erasures should be made after it was signed? This principle of law he doubtless well knew, and it is reasonable to infer that Fuller was in ignorance of it. The direction which Hopkins did give, and his failure to direct further, caused the loss which followed, and his client should suffer, and not the marshal.

These views are decisive of this case. The court charged the jury that it was their province to determine whether the

Page 68 U. S. 654

erasure was made "in consequence of the interference of Hopkins, the attorney," and the charge was right. It would have been better to have used the words "direction" or "instruction" instead of "interference," but, applying the evidence in the case, it is manifest that the jury rightfully interpreted the charge. A nice criticism of words will not be indulged when the meaning of the instruction is plain and obvious and cannot mislead the jury.

2. But it is said that if the court was right in one proposition, it erred in submitting others to the jury.

This is true, but the plaintiffs in error cannot avail themselves of their exception, which was general, and not specific. In Johnston v. Jones, [Footnote 8] this Court said

"It is well settled that if a series of propositions be embodied in instructions and the instructions are excepted to in mass, if any one of the propositions be correct, the exception must be overruled."

3. It is urged that the court was in error in permitting the defendants to ask the witness (Fuller) what Hopkins said about the bond after Fuller had accepted it and given an order for the lumber. The exception is to the question, and not the answer. The question was pertinent and proper. If Fuller had deviated from the strict line of his duty, yet if Hopkins adopted what was done, his client cannot hold the marshal responsible. [Footnote 9] And if Hopkins, after being informed of the circumstances under which Fuller took the bond, assented to it, his client is concluded. [Footnote 10] It was surely important, then, to ascertain whether that assent was given. The answer to the question, even if improper testimony, cannot be complained of here, because no exception was taken to it in the court below. The answer, however, could not have affected the verdict, and it is not necessary to discuss its pertinency. On the whole, we find no error in the record, and are not disposed to disturb the finding of the jury.

Judgment affirmed with costs.

[Footnote 1]

See Martin v. Thomas, 24 How. 315.

[Footnote 2]

Rule 38, adopted at January Term, 1832.

[Footnote 3]

MR. CHIEF JUSTICE TANEY and MESSRS JUSTICES WAYNE, GRIER, and FIELD had not been present at the argument.

[Footnote 4]

Jackson v. Bartlett, 8 Johnson 361.

[Footnote 5]

Jenney v. Delesdernier, 20 Me. 183; Kimball & Company v. Perry, 15 Vt. 414.

[Footnote 6]

Walters v. Sykes, 22 Wendell 568.

[Footnote 7]

Crowder v. Long, 8 Barnewall & Creswell 605; Gorham v. Gale, 7 Cowen 739.

[Footnote 8]

66 U. S. 1 Black 220.

[Footnote 9]

Corning & Horner v. Southland, Sheriff, 3 Hill 552.

[Footnote 10]

Stuart v. Whitaker, 2 Carrington & Payne 100; Bovnon v. Garrat, 1 id. 154.

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