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

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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


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

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