#### JOHN PATTERSON vs. JOHN BRITT & AL.

The acts of a ministerial officer, as a constable or sheriff, in making returns on warrants and writs, although required by law to be returned into a Court of record, do not make a part of the record, are only prima facie taken to be true, and may be contradicted and shewn to be false, antedated, 4rc.

A sheriff cannot be made responsible for the acts of a constable, who sometimes acted aB his deputy but never without a special deputation, and who has committed a trespass by levying a void attachment, unless it ean ba shewn that he was expressly authorized by the sheriff to levy such attachment.

Much less can he be responsible, when the constable returns the attachment levied by him as constable, although by an order of Court the return is permitted to be amended by stating the levy to have been made by the sheriff by the said constable as his deputy, the sheriff’s office having then expired and the order of amendment having been appealed from.

The case of Smith v Lowe, 5 Ire 197, cited and approved.

Appeal from the Superior Court of Law of Beaufort County, at the Fall Term 1850, his Honor Judge Ellis presiding.

This was an action of trespass de bonis asportatis.

The plaintiff alleged, that he was in the possession, and owned a stock of merchandise, on the 28th of June, 1847, when they were taken from him by one Exura, who professed to levy upon them in pursuance of an illegal attachment, sued out by the defendant, Britt, and that he did the act as deputy of the other defendant, Edmundson, who was at the time the sheriff of Greene County, when the goods were taken.

The defendants pleaded severally the general issue, and justification.

*384It was proved by the witnesses, that the plaintiff was the owner, and in possession of a stock of dry goods, groceries, and a variety of articles of merchandise in the town of Snow Hill, and County of Greene, on the 28th of July, 1847.

It was also proved, that, on that day, the «defendant, Britt, sued out an attachment against the property of the plaintiff, for the sum of four hundred and fifty dollars. It was issued by a Justice of the Peace, directed to “any ■ constable or other officer” of Greene County, and made returnable before the Justice issuing it, or any other Justice Of the Peace for Greene County.

This attachment was placed in the hands of one Exura to execute. Said Exum was, at the time, a constable in Greene County, and sometimes acted as deputj- sheriff for the defendant Edmundson ; but only when specially dep* utised. It was.also proved, that the entire stock of mpr-chandis&qf the. plaintiff was taken from his possession by the saitUExum,'who 'professed to levy upon the same, under said attachment. /It did not appear that the said Exum íiad'any'valiíl p'rocess against the plaintiff on the 28th July 1S47, but it did appear that on the following day, t'lje'29th,'he had other regular attachments authorizing hifti to levy on the property of the plaintiff..

The witnesses differed as to whether the property was taken under the defendant, Britt’s attachment, upon the 28th or 29th of July of said year. Two witnesses stated, that it was on the 29th, and one stated that it was on the 28th; and the levy, endorsed upon the attachment itself, which was subsequently returned to the County Court, was datéd as having been made on the 28th of July 1847. By a record introduced by the plaintiff, it appeared, that the said attachment was returned into the Court of Pleas and Quarter Sessions for Greene County, at its next regular term after July 1847, to-wit, in August 1847 ; *385when the defendant, Britt, applied to the Court to order it to be docketed, and for leave to amend by making the attachment returnable to the said Court of Pleas and Quarter Sessions at its said.Term, and for leave to amend the officer’s return, and the direction of the attachment. The Court ordered the case to be placed upon the docket, and allowed the amendments to be made, as moved for, and they were actually made, from which order of amend* ment the plantifftook an appeal to the Superior Court.— The return upon that attachment, as amended, as appeared from said transcript of the record of said Court, recited that said attachment had been executed by levying upon the aforesaid property of the plaintiff on the2Sth of July, 1847, and was signed “Haywood Edmundson, sheriff, by Jas. E. Exum, deputy sheriff/ It appeared from the record, that the defendant, Edmundson, resigned his office of sheriff on Tuesday of the term, when another person was elected, and the amendment^l#^M^mui^chment were allowed, on Wednesday c^thgJ>3ame'xerj^^{ the Court, and that the first return vms endorsed by Éxíim, as constable, upon the said attachmlil^j^^iBSHne'lfiastion of damages the plaintiff called J«hn S. Hardie, wl|| testified that the stock of goods, whmhZt3d^ivi«iirff ‘ht&d on hand when they were taken by Exufoa^wasw'Qgtfajje tween four and five thousand dollars. Joseph Dixon, a witness, thought the goods were worth from three to four thousand dollars, when Exum took them. The plaintiff proposed to show, for the purpose of recovering vindictive damages, that he had been forced by a body of armed men to leave his store-house, and goods at Snow Hill, on the 27th of July 1847, and that he was subsequently kept away by the same means, and that these facts, and the cause of his absence, were known to these defendants and said Exum, the deputy of the defendant, Edmundson, when the said attachment was sued out on the next day, and *386the goods taken by Exum. The defendants objected to the evidence, but it was admitted by the Court.

The defendants introduced evidence of regular and valid process by attachment, placed in the hands of Exum on the 29th of July 1847, against the plaintiff’s property.

The defendants also called a witness to prove, that, when Exum took the property of the plaintiff under the attachment of the defendant, Britt, he was acting as constable, and not as the deputy of the defendant, Edmund-son. Upon objection on the part of the plaintiff, the Court .expressed the opinion, that it was immaterial how the fact was, as the return of the defendant, Edmundson, to the County Court, (which is heretofore set forth) after the amendment was allowed, amounted to an acquiescence in the trespass, which had been theretofore committed by the said Exum, when professing to act under the said attachment, if the act was a trespass : That it appeared from the record of the said Court, that the return was made by the defendant, Edmundson, through Exum, his deputy, and the return thus(appearing of record was full and conclusive proof, that it was the act of Edmundson, and he could not now be heard to deny it, at least so far as the fact of its being his return. And, by this act of re' Cord, he assented .to, and adopted, all the previous acts of the said Exum done under the said attachment. The evidence was not heard. It was proved by the defendants, that a part of the said goods came to the hands of one Vass, with.the assent of the plaintiff, and another portion to the hands of one Williams, under orders of the County Court of Greene, by consent of parties, made in the case of the defendant, Britt, against this plaintiff, relative to the said attachment, returned to the said Court; and that another part .came in the same way to the hands of one Moses. Patterson. It was also proved by the defendants, that a part of the said goods had been sold by the said Exum and the proceeds applied to the payment of regular *387attachments, placed in his hands on the 29th of July 1847J The defendants also introduced evidence of the value of the several amounts of goods, that came to the hands of the respective parties above named, and the amount ap> plied by Exum to valid attachments.

The Court charged the Jury, that the plaintiff’s right to recover depended entirely upon the question, whether the goods were taken on the 28th or 29th ofJulylS47. If they were taken on the 29th, they should return a verdict for the defendants, because, on that day Exum had regular and valid process in his hands, authorizinghim to take the property of the plaintiff, and it mattered not, though he professed to take under other, and void process. But, if they should be of opinion, that the property was taken upon the 28th of July, then the plaintiff would be entitled to recover, because the attachment, under which Exum professed to act, was void, and did not authorize him to take the property of the plaintiff, and it did not ap* pear, on that day he had any regular and valid proces.-; and because these defendants were both responsible for the acts of Exum, it appearing of record that they both, subseqently, acquiesced in these acts, the defendant Ed> mundson by the return of the attachment, and the other defendant, Britt, by accepting the return and prosecuting the said suit against the plantiff; that,if they believed the plaintiff entitled to recover, the proper measure of damages would be the value of the goods at the time they were taken, deducting the value of goods, that came to the hands of Yass, Williams, and Moses Patterson by the consent of the plantifR that they might also allow such sum as they should think reasonable for the injury sustained by the plaintiff, by being deprived of the use of his property since it was taken ; that, if they thought the circumstances of the case would justify them, they would be at liberty to give vindictive damages by way cf punishment to the defendants ; that they should make no *388deduction for tiny of the goods appropriated by Exum to any purpose without the consent of the plaintiff, even though the same might have been appropriated to valid claims in his hands against the plaintiff.

The jury returned a verdict for the plaintiff. The defendants moved for a new trial for error in the instructions to the jury, and for the exclusion of proper evidence, and the admission of illegal testimony. Rule discharged, and a judgment: from which the defendants appealed to the Supreme Court.

Rodman, for the plaintiff.

J. H. Bryan, J. IF. Bryan and. Washington, for the defendants,

made the following points.

. The return of Exum is not conclusive of the facts therein recited ; they are acts “in pais" and not the acts of the Court. Smith v. Low, 5 Ire. 197. 28 E. C. L. R. 423.— 23 Wendell’s Rep. 2S9.

• The return was the act of Exum and not of Edmund-san, the sheriff; it was a single, isolated act, and no evidence of itself against the sheriff. He was not the general deputy of the sheriff.

The damages should have been reduced by the evidence, that a portion of the goods were applied to bona fide attachments against, the plaintiff. 2nd Greenl. Ev. 27S.— Coolege v. Choate, 9 Mas. L. R.

Even if the sheriff had adopted the return of Exum. he would not have been liable for vindictive damages. Hoyt v. Gelston, 13 T. E. 141.

At common law, no one is a trespasser by relation, unless the trespass was done to his use or for his benefit, though he agree to the trespass after it be done. Wilson v. Baker, 24 E. C. L. R. 124. Co- Lit ISO, C. N. 4.

Pearsox, J.

The Court charged, — “that the defendants were both responsible for the acts of Exum, it appear*389ing, of record, that they both subsequently acquiesced in these acts — Edmundson by the return of the attachment, and Britt, by accepting the return and prosecuting the suit.

There is error, in holding Edmundson responsible for the acts of Exum, and giving to the return this conclusive legal effect. How far the superior is bound by the acts of the deputy is not the question ; but it is, did Exum levy upon the goods of the plaintiff as the deputy of Ed' mundson 1 The original return, made by Exum, was a levy by him as constable. The County Court permitted him to amend, so as to make it a return of a levy by Ed-mundson, as sheriff, by Exum his deputy. To this amended return is given the conclusive effect of a record, whereby it is established, that Exum made the levy as deputy, and consequently, that Edmundson is responsible in the same manner as if he had done the act himself.

In what light the question would be viewed, if Exum had been a regular and known deputy, without any other capacity, is not before us. The case states that he was a constable, who sometimes acted as deputy, but only when specially deputised: no express deputation is pretended, and, if ho can be made a deputy at all, it must be, as an inference, from the fact of his assuming that character, in making the amended return. This was done after Ed-mundson went out of office, and he is not shown to have had notice of it. How the assumption in a single instance, without the knowledge of the principal, can conclusively establish the character assumed, so as to make the supe* rior liable in trespass, we are.not able to conceive. His Honor, it seems, gave to the return this conclusive effect, by treating it as a record, which imparts absolute verity. He was mistaken in his premises. A record states the acts of the Court itself. The acts of a ministerial officer, as a constable or sheriff, in making returns on warrants and writs, although required by law to be returned into *390a Court of record, do not make a part of the record, are only prima facie taken to be true, and may be contradicted and shown to be false, antedated, &c. Smith v. Low, 5 Ire. 197. If such a return is not conclusive as to the acts, much less is it conclusive as to the character, of the person, who makes it in the name oí a supposed superior.

The amended return, if evidence at all, was at most only prima facie evidence, that Exum was the deputy, and there are many circumstances tending to rebut it'— he was a constable — never acted as deputy without a special deputation ; he made the levy and the original return as constable, and the order allowing the return to be amended, was vacated by an appeal.

His Honor ought to have submitted the question to the jury, and it was error, to hold the fact conclusively established by the record. As the case will be tried again, it is proper to notice an error, on the question of damages. His Honor held, that the damages could not be abated in respect of the regular attachments, levied on the 29th of July, and under which a part of the property was subsequently sold, and the proceeds applied in discharge of the debts sued for. In this there is error. The levy created a lien on the property, and authorised the officer to retain an amount sufficient to satisfy the judgments, without the consent of the plaintiff, His Honor seems to have confounded this case where there was a lien, with that of an officer who sells under one execution, and claims a right to apply the excess of sales to a note or other debt, upon which there was no judgment, execution and levy — here there was a levy which created a lien. We give no opinion upon the subject of vindictive damages, because the case does not raise the question. The damages were $2,800, they are not stated to be vindictive, and for any thing that is stated, it may be, that this sum was the balance of the value of the goods, after deducting the *391sums allowed for the amounts, which, with the consent of the plaintiff, went into the hands of Yass, Williams, and Henry Patterson. These amounts are not given.

Per Curiam. Judgment reversed and venire de novo.