Rogers v. Marshal

ERROR to the Circuit Court for the District of Wisconsin; the case being thus:

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, 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 defence 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.

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 of 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 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 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 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?

Mr. Carpenter, for the plaintiff in error:

1. There is no more pretence for saying that Hopkins directed or consented to the erasure, than there is for saying that he directed the marshal to forge the name of Proudfit to the bond. He objected to the bond because Remington's name was on it, and because Proudfit's was not; but it was the duty of the marshal, even under these instructions, if they were instructions, to get the name of Proudfit legally upon the bond, and the name of Remington legally off from it, in other words to draw a new bond and to have Proudfit sign that. It would have been correct to charge the jury that if the plaintiff or his attorney directed the erasure to be made in the absence of the other signers, and the marshal erased it, acting under such instructions, the plaintiff could not recover. But the charge in substance was, that if the marshal made the erasure in consequence of the interference of Hopkins-that is, because Hopkins interfered-the plaintiff could not recover. Now it is true that in a popular sense, and as it would be understood by a jury, the erasure was made in consequence of what Hopkins said: that is, if Hopkins had said nothing, the marshal would not have erased the name. So, if the marshal, after the first interview with Hopkins, had forged Proudfit's name to the bond, it might be said that he had done so, in consequence of Hopkins desiring his name on the bond. It was in the sense we have indicated that the jury understood the charge. It must have been so intended by the judge; for there was no testimony tending to prove that Hopkins directed the erasure; on the contrary the marshal rather testified that the last instructions of Hopkins were to take the bond, if Proudfit's name was obtained upon it, waiving the objection that it was signed by Remington.

Again, the judge charged the jury that the interference or consent of the plaintiff's counsel (to the erasure) may be inferred in part from the fact of his afterwards 'acting on the bond as valid, and bringing suit thereon.' This was clearly erroneous; the testimony proved that Hopkins did not consent to the erasure at all, or even know of it till long afterwards. The erasure was a fact; the legal consequence of that fact upon the validity of the bond was matter of opinion. Conceding that when months afterwards Hopkins discovered that the erasure had been made, he thought as matter of law that the bond could be recovered upon, how does that opinion even tend to show that he consented to the erasure? This is the first time that a lawyer's erroneous opinion as to the legal consequences of an act has been held competent evidence tending to prove that he consented to the commission of the act itself.

2. As to the form of the exceptions. The rule of this court was sufficiently observed by the judge in allowing the exceptions here. The bill does not set out the whole charge, but only 'the several matters in law in such charge to which' we excepted; and the bill of exception then says: 'To which said instructions,' &c., 'the plaintiffs, by their counsel then and there in open court, did except, according to the course of practice of' the District Court: that is, according to the practice prescribed by the rule; or, in other words, did except to each of the several matters in law in said charge, which are inserted in this bill of exceptions. The principle of this rule is, that the party excepting should call the attention of the court specifically to the matters objected to, so as to give the court below an opportunity to correct any mistake in the charge. And the party will not be permitted to except generally to the charge, and afterwards mak up his mind which particular propositions are erroneous. Now here the three matters which we excepted to are stated in the bill of exceptions, and it appears that to those we excepted according to the practice of the court; that is, severally to each.

3. The question, 'what did Mr. Hopkins afterwards say about the bond?' meant 'what did he say about it, after you had received it and redelivered the property?' and it invited the witness to testify to what was said a month after such redelivery. This question was objectionable:

1. Because the marshal could not have been induced to take the bond by anything that was said after he had taken it; and

2. Because, admitting that what Hopkins said at the time he objected to the bond, was binding upon Rogers, whom he was then representing in that behalf; yet, what he afterwards declared or admitted about it, could not bind Rogers. While no doubt the rule is that where the acts of the agent will bind the principal, there his representations, declarations and admissions, respecting the subject-matter, will also bind him, if made at the same time, and constituting part of the res gestae; it is equally the rule that this is so, only when such representations, &c., are made at such same time.

Mr. Lynde, contra.

Mr. Justice DAVIS delivered the opinion of the court as follows: