form, were held to be sustained by proof that office incompatible with the first. State v. he was sergeant de facto, he having been duly Clark, 44 Vt. 636. elected and sworn, though his warrant of 10. Justifying an officer. Where an offiappointment was imperfect. Warner v. Stock-cer himself, or those under whose authority he was appointed and put in motion, are called to

well, 9 Vt. 9.

3. All officers having general duties assigned justify his proceedings, it is not enough that them by statute, if shown to have acted and to he was an officer de facto, but they must show have been recognized as such, are presumed to his right to exercise the functions of the office. have been regularly appointed, commissioned Cummings v. Clark, 15 Vt. 653.

and sworn.

11 Vt. 198.

Panton Turnpike Co. v. Bishop, 11. Where a public officer is a party, and he claims or justifies by virtue of his office, he 4. We are not aware that any different can protect himself only by showing that he is proof of the appointment of an officer in a for- an officer de jure. Kellogg, J., in Lyndon v. eign country is required, from that at home. | Miller, 36 Vt. 331. Ib, 398. Adams v. JackProof of one exercising the office de facto is son, 2 Aik. 145. McGregor v. Balch, 14 Vt. usually sufficient, in either case. Redfield, J., 428. Courser v. Powers, 34 Vt. 517. in Spaulding v. Vincent, 24 Vt. 501, note. 12. Official bond. The official bond of a 5. Where one holds office by color of title, public officer de facto, elected and acting as his acts as an officer de facto are valid so far as such-as, a first constable and collector of taxes, they may affect the rights of third persons, or or a State treasurer,—is an obligatory instruthe public, to the same extent that they would ment upon his sureties, although such officer be if he were an officer de jure. Lyndon v. neglected to take the oath of office as required Miller, 36 Vt. 329. State v. Bates, Ib. 396. by the laws and the constitution. Lyndon v. Adams v. Jackson, 2 Aik. 145. Taylor v. Miller, 36 Vt. 329. State v. Bates, Ib. 387. Nichols, 29 Vt. 104. McGregor v. Balch, 14| 13. An official bond is commensurate with Vt. 428. Ferris v. Smith, 24 Vt. 27. Courser the appointment and covers that official term, v. Powers, 34 Vt. 520. and no more. State Treasurer v. Mann, 34 Vt. 371.

6. An action upon an officer's receipt for property attached is, prima facie, brought for the ultimate benefit of the creditor; and where the plaintiff was an officer de facto, such suit cannot be defended on the ground that he was not duly qualified, without at least showing that the suit is now prosecuted solely for his own benefit. Taylor v. Nichols.

14. office.

Oath. The same law as to an oath of Courser v, Powers, 34 Vt. 517. 15. Vacancy. The refusal in good faith, of a public officer to do a particular official act, although required by his duty, does not create a vacancy in his office; as, where a highway surveyor refused to give a receipt for a tax a bill committed to him. Cummings v. Clark, 15 Vt. 653. So, where the prudential committee of a school district refused to assess a tax voted by the district. Stevens v. Kent, 26 Vt. 503.

7. Incompatible offices. Although postmaster is disqualified by the constitution from holding the office of justice of the peace, yet, having been elected a justice, he is such officer de facto, and his acts as justice are, as respects third persons, valid; and, in a suit brought before him as justice, objection to his jurisdiction for such cause cannot be sustained. McGregor v. Balch, 14 Vt. 428. 24 Vt. 32. 36 Vt. 329.

16. Liability for error within jurisdiction. Where a mere ministerial officer acts under the authority of a court or other board or tribunal of a limited jurisdiction, if the act be beyond their jurisdiction, he is, or may be, 8. Under the constitution of this State, liable in trespass. But where there is jurisdicdeclaring that "no person holding any office tion over the person and the subject matter, he of profit or trust under the authority of Con- is not liable for any irregularity or mistake in gress shall be eligible to any appointment in the exercise of that jurisdiction. Brown v. the Legislature, or of holding any executive or Mason, 40 Vt. 157.

judiciary office under this State," a postmaster 17. No action lies for misconduct or delinis eligible to the office of justice of the peace, quency in the performance of judicial duties. but he cannot hold and exercise both offices at Although the officer may not in strictness be a the same time. If he accept the last he must judge, still, if his powers are discretionary and abandon the first; otherwise, he may be in their nature judicial, and he acts within the removed from the State office by quo warranto, scope of his legitimate authority, he is not responand, in a suit brought against him, could not sible for any error of judgment, while acting justify his acts as justice, while he held the in good faith with reasonable diligence. Fuller office of postmaster. Ib. v. Gould, 20 Vt. 643. Stearns v. Miller, 25 Vt.

9. The official act of a constable de facto in 20. Davis v. Strong, 31 Vt. 332. Universalserving process is valid, as to the public and ist Society v. Leach, 35 Vt. 108. Mower v. Allen, third persons, although he may hold another 1 D. Chip. 381. Warner v. Stockwell, 9 Vt. 9.

II. OFFICERS CONNECTED WITH SERVICE OF
PROCESS.

1. Powers, Duties and Liabilities.

26. Subrogation. An officer who becomes chargeable for default upon an execution and pays the creditor therefor, may, with consent of the creditor and in his name, use the creditor's remedies to enforce payment of the debtor. State Treasurer v. Holmes, 4 Vt. 110; and see Oliver v. Chamberlin, 1 D. Chip. 41. 9 Vt,

18. Agent of creditor. Dictum-An officer in making an attachment is the agent and servant of the creditor. Felker v. Emerson, 294. 17 Vt. 101; but, held, that he is not, by receipt 27. The liability of an officer for having of the writ for service, made agent to receive neglected to levy an execution is altogether payment of the demand. If paid, he holds the collateral to the debt, and confers no legal money as agent of the debtor until paid over. interest in it, nor right to control or discharge Wainwright v. Webster, 11 Vt. 576. it. Fletcher v. Crooker, 8 Vt. 314.

19. Set-off of executions. An officer is 28. In what cases a sheriff may be subroempowered to set off one execution against gated to the rights of the creditor in an execuanother between the same parties, where both tion, where the sheriff has become charged are in his hands at the same time. Culver v. thereon; and in what cases sureties may be Pearl, 1 Tyl. 12. But he is not compelled to do so, though so requested by one of the parties. Anon, Brayt. 118. See infra.

20. An officer cannot apply the money collected by him upon an execution, in satisfaction of an execution against the creditor in the first. Prentiss v. Bliss, 4 Vt. 513.

subrogated to the rights of the execution creditor against the sheriff,-considered. Bellows v. Allen, 23 Vt. 169.

29. Where the maker of a promissory note was sued upon it and his property attached, and the attaching officer was obliged to pay the debt through the failure of the receiptors of 21. Regarding equities. Officers are not the attached property;-Held, that the suit bound to regard the equities subsisting between and attachment were for the benefit of a colthe debtors in an execution, or between the lateral guarantor of the note, as well as for the debtors and their other creditors; nor is he creditor, and that the officer was not entitled liable to a co-obligor or surety for any default to be subrogated to the rights of the creditor in enforcing an execution against the principal against the guarantor, a surety. Hammond v. debtor. Rutland v. Paige, 24 Vt. 181. Warren Chamberlin, 26 Vt. 406. v. Edgerton, 22 Vt. 199.

30. Duty to execute all process not

22. Money collected on execution. The void. A sheriff or constable cannot excuse cause of action against an officer for not paying himself from the service of process because it over money collected on execution does not is erroneous, but is bound to execute it unless accrue until demand made. Hutchinson v. absolutely void. Stoddard v. Tarbell, 20 Vt.

Parkhurst, 1 Aik. 258.

321. Fletcher v. Mott, 1 Aik. 339. Lewis v. 23. An officer sued for not paying over to Avery, 8 Vt. 287. Avery v. Lewis, 10 Vt. 332. the creditor the avails of a sale on execution, Bank of Whitehall v. Pettes, 13 Vt. 395. Chase may defend on the ground that the property v. Plymouth, 20 Vt. 469. Thus, he is bound to sold was not the debtor's. Walworth v. Reads- serve an execution issued more than a year boro, 24 Vt. 252. and a day after the judgment. Fletcher v. 24. Where a judgment was rendered in the Mott;-or an execution having a false date, county court against a sheriff for money col-as, June 13, 1809, but reciting the judgment lected on an execution, with 15 per cent. interest truly as rendered at June term, 1839. Bank of from the time of demand, according to the Whitehall v. Pettes. statute, the supreme court, on affirming that 31. A writ, legally served, was afterwards judgment, directed the clerk to cast 15 per cent. altered by the plaintiff, without consent of the interest on so much of it from its date, as was defendant therein, by changing the date and for money detained, and 6 per cent. upon the return day, and was again committed to the residue; although the court below, on allowing same officer for service, with notice to the the exceptions, ordered a stay of execution. defendant of a discharge of the first suit. (Redfield, J., dissenting). Barron v. Pettes, Held, that the writ, as so altered, was not void, 18 Vt. 385.

and that the officer was liable for his neglect 25 For the neglect of a sheriff to pay to serve it. Stoddard v. Tarbell, 20 Vt. 321. over money collected on an execution, the plain- 32. It is not a defense to an officer sued for tiff, under G. S. c. 12, s. 23, recovered the sum his neglect to serve an attachment, that it might with 15 per cent interest thereon as damages. have proved of no benefit to the plaintiff by On affirmance of that judgment in the supreme reason of anticipated proceedings under the court;-Held, that only six per cent interest on bankrupt act. Carlisle v. Soule, 44 Vt. 265. that judgment should be computed. (G. S. c. 33. As to void or irregular process. 30, s. 59.) Smith v. Pike, 44 Vt. 61. Though an officer may be justified in serving

a writ legal upon its face, yet he is not bound that when the officer first called on the debtor to execute it if it be in fact void, or irregular, with the execution he found the debtor thus so that the creditor would become a trespasser sick, and that for six days thereafter on diliby the service. Hill v. Wait, 5 Vt. 124. gent search he could find neither the body nor Barber v. Benson, 9 Vt. 171. property of the debtor, and the execution was 34. In an action against a sheriff for default seasonably returned;-Held, that upon the reof his deputy in not paying over money col- turn, prima facie, the officer was not liable for lected upon an execution;-Held, that it was no neglect to levy the execution. Ib.

defense that the execution was for a less sum 41. Where the original act of an officer in than the judgment and was therefore void as to the service of civil process is unlawful-as the creditor, although the officer might for this where he breaks open the outer door of a dwellreason have refused to collect it. It being ing house for that purpose-those who aid him valid on its face, it was a good justification in the performance of it are trespassers, though for collecting and paying over the money. they act by his command. Hooker v. Smith, Coburn v. Chamberlin, 31 Vt. 326. 19 Vt. 151.

35. Where an offier was sued for neglect to 42. An execution does not, of itself, return a writ issued in an action upon a note;-empower the officer holding it to make a sale Held, that he might in defense impeach the of property thereon to himself; and without note as having been fraudulently obtained, and authority from the parties to it, or of the void. Woolcott v. Gray, Brayt. 91. debtor, at least, he acquires no title to the pro36. Officer interested. Under a statute perty so bid off by himself, though he pay the (G. S. c. 12, s. 27) prohibiting a sheriff, or amount of the execution to the creditor. Woodother officer, from serving "any writ when he bury v. Parker, 19 Vt. 353. is a party or interested in the suit, or in which a 43. But with the assent of the parties to private corporation of which he is a member is the execution, there being no fraud in the a party, or interested;"-Held, that a sheriff transaction as to other creditors, he may was not liable for neglect to levy and return become such purchaser; it being virtually a an execution, committed to him, in favor of a purchase of the debtor. Ib. Farnum v. bank of which he was a stockholder, although Perry, 43 Vt. 473. he served the original writ, attached property 44. Interference thereon, took a receiptor, and had obtained excuse. The taking back of an execution judgment against the receiptor, who proved from an officer, at such a time as to prevent insolvent. Bank of Rut and v. Parsons, 21 him from completing his duty, would release Vt. 199.

of creditor, as an

him; but otherwise, where his liability has already become fixed. Wetherby v. Foster, 5 Vt. 136.

37. Special cases. It is not the legal duty of an officer having an execution in his hands for collection, to levy it upon the lands of the 45. In an action against an officer for a false debtor unless so directed by the creditor, return of a capias, by stating that he had taken although, by direction of the creditor, he "sufficient bail," whereas he did not take bail; served the original writ by the attachment of —Held, that the officer was not concluded by real estate. Bank of Newbury v. Baldwin, his return from proving that the plaintiff 31 Vt. 311. directed him not to require bail; and that such direction was a bar to the action. Ordway v. Bacon, 14 Vt. 378.

38. Where an officer, having an execution in his hands for collection, delivered it over to another for service, and informed the debtor 46. So, in an action against an officer for thereof, who in consequence of such informa- neglect to keep property, returned as attached, tion avoided the execution, which was returned so as to answer upon the execution;-Held, non est ;-Held, that the first officer was liable that he was not concluded by his return from in an action for not executing the writ. Isham proving that he was directed by the plaintiff to v. Eggleston, 2 Vt. 270. make such return and not take the property

39. If an officer would excuse himself by a into his possession, but to leave it with the return of languidus upon process, and by that debtor; and that this was a defense. Abbott v. only, the return must show that the sickness Edgerton, 30 Vt. 208. was such as would endanger life to execute the 47. Where a party or his attorney gives process, and that this continued up to the re- special instructions to an officer, in regard to turn of the process. But if he finds the party the execution of process, different from his sick, his duty is not to remain with him, but legal duty, and he is influenced thereby to omit only to use reasonable diligence in holding the performance of his plain official duty watch for his recovery, so as to make service of (which will be presumed where the instructions the process, and is liable only for negligence have such a tendency, unless the contrary apherein. Bramble v. Poultney, 12 Vt. 342. pears), or where the officer is authorized to act 40. Where the return, in such case, showed according to his discretion, he is exonerated

from legal liability as an officer. In such case, costs and sent it to the creditor, who refused to he ceases to be a public officer as to the business receive it, claiming that it was not such a note entrusted to him, and becomes a mere private as he had authorized the deputy to take. The agent. Willard v. Goodrich, 31 Vt. 597. Strongs deputy did nothing more to collect the execuv. Bradley, 14 Vt. 55. S. C., 13 Vt. 9. Fletcher tion, but suffered it to expire in his hands. v. Bradley, 12 Vt. 22. Kimball v. Perry, 15 Held, that the creditor had done nothing to Vt. 414. Bellows v. Allen, 23 Vt. 169. Austin release the deputy from doing his legal duty, v. Burlington, 34 Vt. 514. but only authorized him to suspend action upon 48. The attorney of an execution creditor the performance of a specific act by the debtor ; sent the execution to a deputy sheriff for col- that he had violated his official duty, and that lection, with the following written instructions: the sheriff was liable to the creditor therefor. "Should you find it necessary to take any other Mason v. Ide, 30 Vt. 697. course than the straightforward one, you will

53. Instructions to an officer by the crediplease advise me." In an action against the tor's attorney, which were construed as equivasheriff for neglect to collect or make return of lent to a direction not to attach real estate, and the execution;-Held, that this writing gave that for the personal property to be attached the deputy an unlimited discretion in the he might take receiptors, and before removing management of the collection of the execution, it he might go to the debtor and see if he would and that whatever he did, or omitted, should furnish receiptors, were held not to release the be referred to that discretion, in the absence of officer from liability for the property attached, evidence that his conduct was in no degreee in- where the receiptors taken, although then refluenced by such instructions; and held, that sponsible, afterwards failed and became irrethe sheriff was not liable. Strongs v. Bradley. sponsible. Austin v. Burlington, 34 Vt. 506. 49. The plaintiff had obtained judgment 54. Measure of liability for neglect. against a sheriff (Church) for neglect to collect Where an officer neglected to return an execuan execution, and Church had obtained judg- tion in due season to charge the bail, he was ment against the receiptor of the property held liable for the whole amount of the execuattached in the original suit. Both judgments tion. Turner v. Lowry, 2 Aik. 72.

were obtained by the same attorney, who hand- 55. So, where the officer refused, or wholly ed an execution in each case, and both at the neglected to serve and return the execution, he same time, to the defendant, a constable, for was held liable for the whole debt, and was not collection, saying, "You may go to Church for allowed to prove the poverty of the debtor in directions." The defendant did apply to mitigation of damages. Hall v. Brooks, 8 Vt. Church, who directed him not to return the 485. See Watkinson v. Bennington, 12 Vt. execution against himself (Church). Relying 404.

upon this, the defendant suffered the execution 56. An officer holding final process against to expire in his hands. In an action therefor, the body of a debtor which he might have serv-Held, that the defendant was justified in ed but neglected to do so and "let it run out following the instructions given. Willard v. on his hands," or, having onee had an opporGoodrich, 31 Vt. 597. tunity to arrest the debtor, neglected to do so, and the debtor afterwards absconded, is fixed with the debt, and in an action against him, cannot show the insolvency of the debtor in mitigation. Goodrich v. Starr, 18 Vt. 227.

50. Instructions given by the creditor to the officer as to the manner of serving process, which do not, in fact, mislead him in the performance of his official duty, do not release him from the consequences of his official neglect. Howes v. Spicer, 23 Vt. 508.

57. The leaning of courts in this State, as well as in others, has been not to hold sheriffs, 51. A certain interference by the creditor or other officers of that class, liable for damassenting to delay of payment of a bid on exe- ages for any neglect of duty, unless the same cution sale [see facts stated and verdict] con- was gross and willful, beyond a fair compensastrued not to be such a control as to release the tion to the party for his actual loss. Poland, officer for not collecting the execution. Wal- J., in Blodgett v. Brattleboro, 30 Vt. 583-4. worth v. Readsboro, 24 Vt. 252. 58. For the mere neglect of an officer to 52. A deputy sheriff holding an execution return, within its life, an execution not fully for collection, sent a message to the creditor, executed, he is liable, but only for nominal by the debtor's request, inquiring if he would damages, unless it appears that actual damages take the note of one D for the amount of the have been sustained. Kidder v. Barker, 18 Vt. execution. The creditor returned word to the 454. Ives v. Strong, 19 Vt. 546. Bank of deputy, that he might take the negotiable note Newbury v. Baldwin, 31 Vt. 311. Watkinson of D, or of any good man, for the amount of v. Bennington, 12 Vt. 404. Turner v. Lowry, the damages, but that the costs must be paid. 2 Aik. 72.

The deputy thereupon took the non-negotiable 59. Where an officer, through mere casualty, note of D for the amount of both damages and neglects to return a writ, the actual injury to

the plaintiff by the non-return of the writ is the debt, is not, under ordinary circumstances, measure of damages. Hamilton v. Marsh, 2 allowable. Henry v. Tilson, 17 Vt. 479. Tyl. 403.

68. A constable who commits one to jail 60. In an action against an officer for not upon a tax warrant is entitled to travel fees taking bail upon a writ, the rule of damages is only one way-no return being necessary. Ib. the amount of the judgment, where the debtor 69. In trespass by an officer, against a perhas absconded so that he cannot be reached by son other than the debtor in an execution, for execution, unless there be evidence tending to taking from his possession property held on the prove the insolvency of the debtor. Crane execution, it was held no objection to including V. Warner, 14 Vt. 40. in the damages his fees on the execution, that

61. In an action against an officer for not they were stated on the execution in gross, and levying upon particular property, the rule of not by items. (G. S. c. 12, s. 29.) Houston v. damages is the cash value of the property, not Howard, 39 Vt. 54. exceeding the amount due on the execution, and not an estimated auction value.

v. Foster, 5 Vt. 136.

70. The defendant, a constable of the plainWitherby tiff town, had an execution in favor of one S

against the town in his hands for collection. 62. It is not a full defense to an action After demanding, but before receiving, payment against an officer for making a defective levy thereof, he advanced to S, at his request, the of execution upon land, that the levy had amount thereof, with the understanding that become perfected by lapse of time after the the money when collected on the execution commencement of the suit. Bell v. Roberts, should be his own. He retained the execution 13 Vt. 582;-nor is it a defense that the debtor had no title to the land. S. C., 15 Vt. 741.

2. Fees.

and afterwards the plaintiff, knowing the facts, paid the defendant the amount of the execution, together with his fees for collection, without objection. Held, that the defendant had no such legal interest in the execution as disqual63. Where an officer receives a writ for ser-ified him from charging his fees for collecting vice without objection for non-prepayment of it, and that the plaintiff could not recover back his fees, he is bound to serve the writ notwith- from him the fees so paid. Strafford v. Blaisstanding. Such acceptance is a waiver of pre- dell, 45 Vt. 549.

payment.

Carlisle v. Soule, 44 Vt. 265.

64. An officer cannot charge fees for return of an execution stayed by a supersedeas in a writ of error. Fitch v. Stanton, 1 Tyl. 28.

71. Illegal fees. Where an officer charged the plaintiff in a suit, and was paid by him while that suit was pending, larger fees than allowed by law for serving the writ;-Held, 65. An officer, who proceeded to levy an that the officer was liable to him for the statute execution for his fees, after payment of the penalty, notwithstanding the fees, as charged, execution by the debtor to the creditor, while were afterwards taxed for such plaintiff in his in the officer's hands and before levy, which bill of costs, and were paid by the defendant in payment was indorsed upon the execution, was that suit to such plaintiff's attorney. Johnson held liable in trespass;-that without a levy, or v. Burnham, 22 Vt. 639. payment of the money upon the execution to

72. The penalty for receiving illegal fees the officer, he was not entitled to fees. Bar- (G. S. c. 125, s. 17), applies as well to charges nard v. Stevens, 2 Aik. 429. 19 Vt. 572. for official services for which no fixed, but only

S. c. 126, s. 52), as to such as are specified in the fee bill. Henry v. Tilson, 17 Vt. 479.

66. An officer had levied an execution and proportionate, compensation is authorized (G. advertised the property for sale, when it was taken from him by writ of replevin, of all which he made return upon the execution. Held, that he was entitled to recover of the execution creditor his full fees as for a levy of the execution, including travel and poundage. Baldwin v. Shaw, 35 Vt. 272.

73. An officer who receives illegal fees, is not liable to the penalty imposed by the statute, unless received with a knowledge of their illegality. Ib. Haynes v. Hall, 37 Vt. 20.

67. A charge, in addition to the travel fee, for the 'conveyance" of a prisoner to jail passer ab initio, see TRESPASS, I., 2. upon a commitment on a tax warrant, or for

Where an officer is held to become a tres