Слике страница
PDF
ePub

his patients may suffer. It is quite apparent that the argument that public policy forbids the service of process as made in this case is unsound and illogical. The legislature can establish any regulations in the premises that may be needed. The judgment is reversed, and judgment is rendered that the demurrer be overruled, and the third plea is sufficient. The cause is remanded, with leave to the plaintiff to replead on the usual terms.

(60 Vt. 595)

COWDERY V. JOHNSON.1

(Supreme Court of Vermont. Caledonia. September 25, 1888.)

1. WRITS-Service-BY DEPUTY-AUTHORITY.

Under R. L. Vt. § 858, which provides that the sheriff may depute any proper person to serve a writ or other precept, by indorsing thereon a special deputation, the deputation may be written on a separate piece of paper and attached to the back of the process by the sheriff, or he may authorize another to attach it for him. 2. SAME-DEPUTATION-REQUISITES.

It is not necessary that the deputation should state that the deputy is a "proper person.

Exceptions from Caledonia county court; before Justice VEAZEY. Trespass for false imprisonment, Pleas, general issue, two pleas in bar, and notice. Trial by court, June term, 1887. Judgment for the defendant. Bates & May, for plaintiff.

The deputation of defendant required a judicial decision of certain facts, and the performance of a corporeal act by the sheriff. It is analogous to the authorization by a justice of a person to serve a writ. Section 862, R. L. It cannot be done in blank or by proxy. Ex parte Kellogy, 6 Vt. 509. In Kelly v. Paris, 10 Vt. 261, an authorization in legal form upon a blank writ, which was afterwards filled, was held bad; the court holding that it was the amanuensis, and not the magistrate, who conferred the authority, and actually made the appointment. Ross v. Fuller, 12 Vt. 270. The statutory form of authorization must be followed. Edgerton v. Barrett, 21 Vt. 196; Washburn v. Hammond, 25 Vt. 648; Howard v. Walker, 39 Vt. 163; Carr v. Tyler, 28 Vt. 783; Dolbear v. Hancock, 19 Vt. 388; Brooks v. Farr, 51 Vt. 396; Allen v. Smith, 12 N. J. Law, 159; Meyer v. Bishop, 27, N. J. Eq. 141. The opinion in Ross v. Shurtleff, 55 Vt. 177, construes section 860. It is not an authority in this case, for the authority there given is by statute. Ide & Stafford and Harry Blodgett, for defendant.

The defendant had the necessary authority to serve the process. The original authorization extended to the final completion of all that could be done under that execution, or any renewals thereof. Ross v. Shurtleff, 55 Vt. 177; R. L. § 860; Larned v. Allen, 13 Mass. 295. The defendant was lawfully deputed to serve the alias upon which the arrest was made. Bellows v. Weeks, 41 Vt. 603; Ex parte Kellogg, 6 Vt. 509; Rob. Dig. 573.

ROWELL, J. The original and the alias executions had been put into the hands of the sheriff for service, and he had deputed the defendant to serve them, but he had returned them unsatisfied. On April 15, 1885, the sheriff left the state, and was gone several days. The day he went away, or the day before, Mr. Blodgett, the attorney of the execution creditor, called upon him with reference to serving a pluries execution. He told Mr. Blodgett he was going away, but if he would bring him the pluries before he went, he would indorse upon it a deputation to the defendant, and if he did not get around with it before he went, he would leave a deputation to be pasted on

1Reported by Senter & Kemp, Esqs., of the Montpelier bar.

the back of it. Blodgett did not get around with the execution before the sheriff went, so the sheriff made a deputation to the defendant on a slip of paper, and signed it, leaving the date blank, and just before he went away gave it to the defendant, and authorized him to fill in the date, and to use it as a deputation to serve precepts of the character of executions. At the same time he gave the defendant other similar deputations, and also deputations to serve another kind of writs, and explained to him the difference, and directed him to use them by pasting them upon the backs of such writs and other processes as they applied to, and as he might be called upon to serve during his absence, and told him he would have occasion to use one of them soon, but did not tell him upon what process. On the same day Mr. Blodgett took out a pluries execution, and carried it to the defendant, a proper person to serve the same, who thereupon took a deputation applicable to the precept, filled in the date, and handed it to Mr. Blodgett to paste onto the back of the execution, which he did, and then handed the execution to the defendant to serve, and he served it by arresting and imprisoning the plaintiff; and this is complained of as a trespass, for that the defendant was not lawfully deputed to make the service. The statute provides that the sheriff may depute any proper person to serve a writ by indorsing thereon a special deputation. R. L. § 858. Although to indorse means to write on the back of, yet it is not necessary under the statute that the deputation should be written upon the very fabric of the process itself. It may be written on another piece of paper, and attached to the back of the process by the sheriff, or he may, in certain circumstances, authorize another to attach it for him. In this case the sheriff's attention was called to the particular execution in question, and he made and delivered to the defendant a deputation applicable thereto and designed therefor, and authorized him to use it thereon, with the intent and purpose of thereby conferring upon him lawïul authority to serve the same, and that same deputation, or one like it,—but from the exceptions it rather seems to have been the same,-was used accordingly, and thereby became and was indorsed upon the execution as effectively as though put there by the sheriff himself. Indeed, it was put there by him, in the eye of the law; he performed the act by another as his instrument, and the requirement of the statute was fulfilled. We give no countenance to the practice of putting deputations into the hands of a special deputy, for him to use as he may have occasion, on processes not coming within the cognizance of the sheriff, as this case discloses was done, nor intimation in favor of the validity of such authorizations. The statute is that the sheriff may depute "any proper person," and it is claimed that the deputation itself must state that the deputy is a proper person, which the deputation does not do. It is said to be a general rule that, when authority is given sub modo, the special circumstances that confer it must affirmatively appear. Brooks v. Farr, 51 Vt. 396. This was said in reference to the necessity of stating the statutory cause for directing a writ to an indifferent person. It was also said, but not decided, that it would be more consistent with analogy to require it to appear that the person authorized was an indifferent person. But such a requirement would seem not to come within the rule, for the fact of indifference is not of the circumstances conterring the authority to make the appointment, but pertains only to the kind of a person to be appointed; and in Miller v. Hayes, Brayt. 21, the fact of indifference was held not necessary to be stated. We construe the statute under consideration as not requiring the deputation to state that the deputy is a proper person. The next clause of that section is that, when he deems it necessary, the sheriff may depute "some person" to serve a warrant in a criminal case. Surely it cannot be necessary in such a deputation to state that the deputy is "some person. The former clause of the section means no more than the latter, and is the same as though it read "a person;" in which case it would have to be a proper person, that is, one

[ocr errors]

who might legally act, the same as now, and in either case, whether a proper person or not, would have to be determined by the general law applicable to the subject. The presumption in favor of the regularity of official acts is sufficient in the first instance, and until the impropriety of the appointment is made to appear. Judgment affirmed.

(60 Vt. 599)

GIFFIN v. BARR.

(Supreme Court of Vermont. Caledonia. September 24, 1888.) 1. CHATTEL MORTGAGE PLEADING.

REFUSAL TO CANCEL-ACTION FOR PENALTY AND DAMAGE —

A declaration based on Acts Vt. 1882, No. 69, § 2, which provides for the recovery of $10 penalty, and all damages occasioned by the refusal or neglect to discharge a chattel mortgage after performance of its condition, properly unites a claim for the penalty and for damages in a single count.

2. SAME-SPECIAL DAMAGES-PLEADING AND PROOF.

When such declaration counts upon the recovery of the penalty and other damages occasioned by the refusal or neglect, plaintiff cannot, under the allegation of "other damages," recover for his time and expenses in going to a third person, falsely stated by the mortgagee to have the mortgage in his possession, to ascertain if it has been discharged, such damage not being the natural consequence of the refusal to discharge, but special damage, recoverable, if at all, only on a special allegation.

3. SAME-EXEMPLARY DAMAGES.

Exemplary damages, beyond the amount of the $10 penalty, are not recoverable in an action under the statute.

4. SAME-EVIDENCE-USURY.

Evidence of usury in the mortgage note is admissible, as bearing upon the question whether the amount legally due had been paid before defendant was called on to discharge the mortgage, and that such evidence became immaterial in the course of the trial does not render its admission error.

Exceptions from Caledonia county court; before Justice TAFT.

Action on the case, to recover a penalty and damages for not discharging a chattel mortgage, as provided by the Acts of 1882, No. 69. Trial by jury, December term, 1887. One question was when the application of payments, especially a quantity of hay, should be made. The defendant drew the hay away after the commencement of the suit; but the plaintiff's evidence tended to show that defendant was to take the hay in full payment before it was removed from the barn, and the jury were instructed that, unless they found that the hay was to be applied as the plaintiff claimed, they would find for the defendant. The evidence tended to show that, after the note had been paid, as the plaintiff claimed, and a demand made upon the defendant to discharge the mortgage, that the defendant told the plaintiff that Mr. Sulloway, in St. Johnsbury, had the mortgage; that the plaintiff went to St. Johnsbury, and found that Sulloway did not have it, and upon going again to the defendant was told by him that he had discharged it; that the plaintiff went to the Hardwick town clerk's office, to ascertain if he had done so, and found that he had not.

L. D. Hathaway and J. P. Lamson, for defendant.

It was error to admit the evidence as to the usury. The error was not remedied by what the court said afterwards. State v. Meader, 54 Vt. 126. It was error to admit the evidence as to the damages. In order to recover damages, there should be two counts. It was error to allow exemplary damages. Sewing-Machine Co. v. Weeks, 49 Vt. 342; Burnham v. Jenness, 54 Vt. 272; Burnett v. Ward, 42 Vt. 80; Spaulding v. Cook, 48 Vt. 145; Sherman v. Johnson, 58 Vt. 40, 2 ̊Atl. Rep. 707; Lombard v. Batchelder, 58 Vt. 558, 5 Atl. Rep. 511. Again, the plaintiff did not claim exemplary damages in opening his case. Edwards v. Leavitt, 46 Vt. 126.

Wilson & Powers, for plaintiff.

The evidence of the $45 was admissible. Day v. Cummings, 19 Vt. 496; Ward v. Whitney, 32 Vt. 89; Davis v. Converse, 35 Vt. 503; Ewing v. Griswold, 43 Vt. 400; Blair v. Ellsworth, 55 Vt. 417. So was the evidence as to the damage; it was caused by the defendant's wrong. 2 Greenl. Ev. § 254; Green v. Donaldson, 16 Vt. 162. This evidence was clearly admissible on the question of exemplary damages. 1 Sedg. Dam. 466; Earl v. Tupper, 45 Vt. 275; Burnham v. Jenness, 54 Vt. 272; Camp v. Camp, 59 Vt. 667, 10 Atl. Rep. 748. The only question as to the allowance of exemplary damages raised by the exceptions is whether they are allowable when not claimed by the plaintiff's counsel in the opening argument. The exceptions do not show but that they were so claimed. Isham v. Eggleston, 2 Vt. 270; Green v. Donaldson, supra; Burnham v. Jenness, 54 Vt. 272; Eames v. Brattleboro, Id. 471. It has been repeatedly held in this state that defendant's liability to the imposition of a fine in a criminal prosecution is no bar to exemplary damages in a civil suit for the same cause. Edwards v. Leavitt, 46 Vt. 126; Hoadley v. Watson, 45 Vt. 289.

Ross, J. 1. The amount of the debt secured by the chattel mortgage legally due from the plaintiff to the defendant was necessarily involved in determining whether the plaintiff had fully paid it before demanding that the defendant should discharge the mortgage. If, as claimed by the plaintiff, usury was included in the note secured by the mortgage, he was entitled to show the amount of such usury, to enable the jury to determine whether he had fully paid all that was legally due from him to the defendant thereon, before he called upon the defendant to discharge the mortgage. Hence it was not error to admit evidence tending to show that usury was included in the mortgage note. The fact that it became afterwards, in the course of the trial, immaterial to the issue whether usury was or was not included in the mortgage note did not render the admission of evidence legitimate, at the time it was admitted erroneous. This exception is not sustained.

2. The defendant excepted to the admission of any evidence tending to show that the plaintiff had suffered any damages beyond the penalty prescribed by the statute, claiming that the declaration should contain separate counts, one declaring for the penalty, and another for damages. We do not think that this exception is well taken. The action is upon section 2, No. 69, Acts 1882. That section of the act makes it the duty of the mortgagee, after the performance of the condition of a mortgage of personal property, within 10 days after being thereto requested by any person entitled to redeem, to discharge the mortgage, and prescribes that, for a failure to discharge the mortgage within the time limited, the person entitled to redeem may recover of the person whose duty it is to discharge the mortgage $10, and all damages occasioned thereby, in an action on the case. In declaring upon this provision of the statute, the necessity for separate counts for the $10, the fixed damages, and for all damages occasioned thereby, is not apparent. The fixed damages or penalty, and all damages occasioned thereby, arise from the same state of facts. It cannot be necessary to repeat the same facts in two counts, closing one with a demand to recover the $10, and the other with a demand to recover all damages, when the right to recover both is given by the same section of the statute, and upon exactly the same facts. But if two counts were strictly necessary, one for the fixed, and another for the actual damages, including both in one count could not be taken advantage of by exception to the admission of the evidence. At most it would be open to the fault of duplicity in pleading, which must be taken advantage of by demurrer.

3. The declaration counts upon the recovery of $10 and other damages occasioned by the defendant's alleged refusal or neglect to discharge the mortgage. Under the allegation of "other damages" the plaintiff could recover only such

damages as were the natural consequence of the refusal. The plaintiff's time and expenses in going to St. Johnsbury to see Mr. Sulloway did not flow as a natural consequence from the defendant's neglect to discharge the mortgage, but rather from the false declaration that Mr. Sulloway had the mortgage. By the terms of the statute (section 2, act 1882) it was the defendant's duty to discharge the mortgage, not upon the mortgage, but upon the record thereof, at the town clerk's office. Hence the town clerk's office was the place where the plaintiff should have gone to determine whether the mortgage had been discharged. His journey to St. Johnsbury, induced by the defendant's falsehood, was special damage, if any, and could only be recovered, if at all, upon a special allegation therefor. It was error to receive this evidence, against the defendant's exception, upon the general allegation of "other damages, which could only mean the damages naturally arising from the defendant's neglect to discharge the mortgage.

[ocr errors]

4. But it is claimed that this evidence was admissible upon the question of exemplary damages. If such damages were recoverable in this form of action, it would be admissible upon that branch of the case. But the court did not confine it to that branch of the case, but told the jury the plaintiff might recover the damages he sustained in going to St. Johnsbury, which, as we have held, was error. At the trial, the defendant contended that exemplary damages could not be recovered in this action, and excepted to the holding of the court to the contrary We think this holding was error. Whether the plaintiff might not have maintained a common-law action for the neglect or refusal of the defendant to discharge the mortgage upon proper request, after the mortgage was satisfied, and in such action have recovered, upon proof of willful neglect, exemplary damages, need not be determined. This is not such an action, but an action upon the statute, by which, for the refusal or neglect to discharge the mortgage upon the record for a limited time, after a proper request, the plaintiff was entitled to recover a fixed sum, $10, and "all damages occasioned" by the neglect or refusal. The fixed sum of $10 was evidently intended as the limit of the damages recoverable for the neglect or refusal above "all damages occasioned thereby." Exemplary damages are based upon the willful misconduct of the defendant in the transaction, are not recoverable as a matter of right, are largely in the sound discretion of the jury, and cannot be said to be damages occasioned by the neglect or refusal of the defendant. Having based his action upon the statute, the plaintiff must be confined in recovery of damages to the limits given by the statute. Hence, in this form of action, based as it is upon the statute, it was error for the court to tell the jury that the plaintiff could recover exemplary damages if he showed he was entitled to any actual damages. For these errors the judgment of the county court must be reversed. But as these errors do not touch the plaintiff's right to recover the $10 named in the statute, the plaintiff would on the record still be entitled to judgment for that sum, if he should remit all above that sum. The judgment of the county court is reversed, and, if the plaintiff shall remit all damages above $10 within 10 days from the filing of this entry, then judgment is rendered for the plaintiff to recover $10 and his costs, less the defendant's costs in this court; on the plaintiff's failure to remit the damages above $10 within the time named, the case is remanded for a new trial. POWERS, J., did not sit in the case.

(60 Vt. 378)

WILLIAMS v. MOLIERE et ux.

(Supreme Court of Vermont. Windsor. September 26, 1888.) POWERS-TESTAMENTARY POWERS-BY WHOM MAY BE EXERcised.

Where the devise is in trust to the trustee "and to his heirs, upon the trust and for the uses and purposes, and with the powers hereinafter declared, " discretionary

« ПретходнаНастави »