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.
