[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 183 There was evidence to go to the jury tending to connect the defendants with the officers in taking and carrying away the chattels of the plaintiffs; but upon the evidence it was a question of fact for the jury, and should have been submitted to them. The warrant issued at the instance of the defendants only authorized the seizure of the goods of the bankrupts named therein, and did not direct the taking the goods of the plaintiffs or from their possession. There was no direction from the defendants to take the property in question or to seize any goods in the possession of the plaintiffs. The defendants were not present at the taking the goods or at the time of their sale, and did not, at any time in person, direct or interfere with the persons committing the trespass upon the plaintiffs. It may be assumed that the defendants put the officers in motion; but the authority from the defendants, which the law would imply, was only coextensive with that conferred by the warrant, and to do only lawful acts pursuant to the process. The law will not, without evidence, presume an authority from the defendants, regarding them as the promoters and principals in the proceedings, to commit a trespass or do any unlawful act. A master is liable in trespass for acts of his servants, commanded or authorized by him. The authority may be express or implied, and a previous command may be proved either by direct evidence or by any legal evidence which will satisfy the jury. Whether a subsequent ratification, a mere approval of the act, will render the master directly liable in trespass is disputed. (Bishop v.Montague, Cro. Eliz., 824; 2 Greenl. Ev., § 68.) If however the party, in whose name and for whose benefit a trespass is committed, with full knowledge of the facts sanction the act and appropriate the proceeds of the trespass, it is evidence for the jury from which they may infer a previous command or authority. (Vanderbilt v. Richmond Turnpike Co., 2 Comst., 479; Fox v.Jackson, 8 Barb., 355; Brainerd v. Dunning, 30 N.Y., 211.)
The presence of the attorney of the defendants at the time *Page 185 of the seizure and sale of the goods and his directions to the officers, did not make the defendants liable for the tortious act. In the absence of proof of special authority to an attorney, his acts in directing the levy upon or the taking of goods upon process are in excess of his general powers as an attorney and do not affect or subject his client to liability. (Averill v.Williams, 4 Den., 295.) The acts and directions of the attorney were not evidence against the defendants. Neither did the directions of the general agent of the defendants, without other evidence, connect the defendants with the trespass. (Vanderbilt v. Richmond Turnpike Co., supra.)
There was some evidence that at some time after the seizure the defendants gave a bond in some form to the marshal, but the bond was not produced and it did not appear for what precise purpose it was given, or against what acts it purported to indemnify the marshal and his deputies, if indeed it was a bond of indemnity at all. Had it been produced it would have been for the court to interpret it, and had it proved to be merely an indemnity for serving the warrant as against the bankrupts, it would not have tended to convict the parties to it of a tortious taking of the plaintiffs' goods. (Cronshaw v. Chapman, 7 H. N., 911.) Not being produced the circumstance of giving any bond was but slight evidence to connect the defendants with the trespass.
The evidence to show that the defendants received to their personal use any part of the proceeds of the goods sold, or that they did any act with knowledge of the facts and that the goods were taken from the possession of the plaintiffs, or that they were claimed by them, as owners, was very slight. And while the whole evidence may have been sufficient to carry the case to the jury it was not of that conclusive character as to justify the taking the question from the jury and disposing of it as a question of law, or as a fact established by incontrovertible evidence. It depended upon deductions and inferences from the facts proved and all the evidence in the action. *Page 186
The judge erred in refusing the request of the counsel for the defendants to submit this question to the jury. (Read v.Hurd, 7 Wend., 408; McMorris v. Simpson, 21 id., 610; Bay v. Gunn, 1 Denio, 108; Thurman v. Wells, 18 Barb., 500;Borrodaile v. Leek, 9 id., 611.)
The judgment must be reversed and a new trial granted.
All concur; except MILLER, J., not voting.
Judgment accordingly.