11 Md. 471 | Md. | 1857
delivered the opinion of this court.
This suit was instituted by the appellant against F. N„ Webb, H. Hicks and D. M. Deitrick, for taking a mare, wagon and harness, from the possession of the appellant, he being the owner of the property; which suit commenced on the 3rd of November 1856.
The defendants severed in their pleadings.
Webb filed two pleas. First. That he did not commit the wrong. Second. That he took the property mentioned in the declaration, under and by virtue of an attachment issued by James W. Leggett, a justice of the peace, duly commissioned and qualified, directed to him (Webb) as a constable.
Hicks also filed two pleas. First. That he did not commit the wrong. Second. That at the time of the alleged trespass, he was one of the administrators of George W. Lahn, deceased, and the plaintiff being indebted to the. said Lahn, and the plaintiff not being a citizen of the State of Maryland, and not residing therein, he the defendant exhibited to James W. Leggett, a justice of the peace in and for Washington county, duly commissioned and qualified, the account on and by which the plaintiff wras indebted, as aforesaid, to the said Lahn; and at the same time he, the defendant, made oath before Leggett, ,the justice, as required by law, to obtain a writ of attachment, commonly called a foreign attachment, against the goods and chattels of the said plaintiff, whereupon a writ of attachment commonly called a foreign attachment, was issued by the said justice, and directed to Floyd N. Webb, a
Deitrick, the third defendant, filed two pleas similar to those filed by Hicks.
The plaintiff took issue on the first pleas of the defendants, and filed six replications; which it, was agreed should be considered as applying to the second plea of each defendant.
The first four replications were traversed, and issues were joined upon them. The 5th and 6th replications were demurred to.
No causes of demurrer are particularly expressed, as required by the.act of 1856, cli. 112, sub-ch. 2, art. 1, sec. 37. We learn however, that under the agreements filed in the cause, it was the understanding of counsel, that notwithstanding the form of the demurrer, it should have the same effect as if the causes of demurrer had been specified, according to ■the provisions of the statute.
The 5th replication is, “that the plaintiff in the said attache ment proceedings, did not at the time of suing said attachment, set up at three of the most public places in the county, at least ten days before the return day of said attachment, an affidavit of the truth of their claim, upon which the said at- . tachment issued, together with a copy thereof, as required by law.”
The 6th replication is, “that at the time of issuing the said attachment, the plaintiffs in the said attachment proceedings, did not file a short note to be sent out with the said writ of attachment, to be set up at the court house door.”
The demurrer to these replications, was sustained by the court below. Whether in so doing the court decided erroneously, is a question presented by this appeal.
The appellant contends, that even conceding his replications did not entitle him to a judgment upon the demurrer, yet the judgment should have been in his favor, because of defects in the second plea of each defendant.
In support of this position, he refers to sub-ch. 2, art. 1, sec. 40, of the act of 1856, where it is said: “When issue is
The appellant says, the second pleas are defective, because they set up a justification for taking the property in dispute, under an attachment issued by a justice of the peace, without setting forth all such facts as were necessary, to show that the justice had jurisdiction and authority to issue the writ.
Inasmuch as a justice has only an inferior and limited jurisdiction, it is contended, that a plea of justification cannot be a valid defense, when based upon such a writ as the one in question, unless the plea shows that the writ was issued, under circumstances which gave the justice jurisdiction. Such an objection to the pleas before us might have been a valid one, under the old system of pleading, inasmuch as the pleas do not contain statements of all the facts necessary to constitute legal justification. But the act of 1856 has made an important change in this respect.
The 60th section, of sub-chapter 2, article 4, provides, that “ Where in a pleading, any thing is alleged generally to have been done, it shall be considered as meaning legally done, and by the proper instrument of writing, where one is required, without stating how or in what manner it was done.”
The pleas allege generally, that the property was taken under and by virtue of a writ of attachment, issued by a justice of the peace of Washington county, and directed to Webb as a constable. By our laws, justices of the peace have authority to issue attachments, in certain cases. And under the new system of pleading, the general allegations here made,, that the property was taken by virtue of an attachment, issued by a justice of the peace, must be considered as meaning that the writ was legally issued. The pleas are therefore to be understood as alleging, that everything was done which was neces
Looking at the pleas in the aspect stated, we do not think the plaintiff was entitled to a judgment upon the demurrer, on account of errors in the second pleas.
The demurrer with reference to the 5th replication, was correctly decided in favor of the defendants. To sustain that replication would be to affirm that the attachment was illegal and void, because the plaintiffs in the attachment did not at the time it was issued, set up at three of the most public places in the county, at least ten days before the return day thereof, an affidavit of the truth of their claim, upon which the attachment issued, together with a copy thereof. It is true, that the act of 1849, ch. 269, would seem to require such a notice should be given; but in our opinion this has been dispensed with, by the act of 1852, ch. 239, sec. 2. It is provided in the latter act, that “in all actions of replevin and attachment, the proceedings before the justice of the peace, shall be similar to those in the several circuit courts of the State.” The notice prescribed in the act of 1849, is not required in any part of the proceedings in attachment in the circuit courts. In those cases, it is made necessary by the act of 1795, ch. 56, that a short note should be filed and a copy thereof sent with the writ, to be set up at the court house door by the sheriff.
This notice, by means of a copy of the short note being required, by virtue of the provisions in the act of 1852, must be considered as a virtual repeal of the notice prescribed in the previous act of 1849.
The 6th replication alleges, that at the time of issuing the attachment, there was not filed a short note to be sent out with the writ, to be set up at the court house door. That the filing
In Stone vs. Magruder, 10 G. & J., 385, the court say:' “The act of Assembly of 1795, ch. 56, in its third section declares, that upon the issuing of every attachment, there shall be therewith issued, a writ of capias ad respondendum, against the defendant, and a declaration or short note, expressing the plaintiff’s cause of action, shall moreover he filed and a copy thereof sent with the ivrit, to be set up at the court house door by the sheriff. ’ ’
“By the plain and obvious construction of this section, the attachment per se would have no validity; it must always be attended with a capias and short note. In the language of the law, the capias is to be issued therewith, and a copy of the short note is to be sent with the capias.”
In Brent vs. Taylor & Marks, 6 Md. Rep., 70, which was the case of an attachment against a married woman, under the act of 1842, ch. 293, the court say: “The want of the short note is fatal to the proceedings. Without it they are coram non judice and void.” And several Maryland decisions on the subject, are referred to in support of the views of the court. See also 6 G. & J., 348. 1 Gill, 379, 381, 382 and 383.
It has been contended, that the attachment is a justification to Webb, the constable, if not to the other defendants. Let us examine whether this is true.
In reference to tribunals of limited jurisdiction, many cases are to be found which state it as a general principle, that if an inferior court exceeds its jurisdiction, its proceedings are void, and afford no protection to the party, or to the officer who has executed its process.
The authorities however, are somewhat in conflict as to the cases in which a ministerial officer will or will not be protected. Perkin vs. Proctor, 2 Wilson, 380. The Margate Pier Co. vs. Hannam, 3 Barn. & Ald., 266. (5 Eng. C. L. Rep., 278.) Morrell vs. Martin, 3 Man. & Gran., 581. (42 Eng. C. L. Rep., 305.) Wise vs. Withers, 3 Cranch., 331. Mills vs. Martin, 19 Johns., 35. Thatcher vs. Powell, 6 Wheat.,
In Grumon vs. Raymond, 1 Conn. Rep., 47 and 48, it is said: “Although an officer is not always liable when he executes an improper warrant, yet this is in a case where it does not appear on the face of the warrant that it is illegal. It may, for any thing that the officer can discover, be legal; and in such case it is his duty to obey, and to presume that it is lawful. ■ But an officer is bound to know the law; and when the warrant, on the face of it appears to be illegal, and he executes it, • he is liable to the person arrested.”
The replication alleges there was no short note; and, of course, the demurrer admits the truth of the allegation. If there was none, Webb, the officer, knew it, for if a short note had been sent with the writ, the law made it his duty to set it up at the court house door; he moreover, was bound to know that the attachment had no validity without the short note. Being thus necessarily apprized of the fact, that the process was defective and void, he could not justify taking the property of the plaintiff under it. And if the attachment was no justification to him, it could be none to the other defendants, at whose instance the process issued, and who failed to file the short note which they were required by law to do. The 6th replication to each second plea, was therefore a sufficient reply to the alleged justification, and should have been sustained by the judgment of the court upon demurrer.
At the trial of the issues in fact, two bills of exceptions were taken by the plaintiff. The first presented a question, as to the
it was proved by the plaintiff that in October 1856, he being then a citizen and resident of the State of Virginia, was with his family in Washington county; that he had then and there with him a horse or mare, and a spring wagon used as a conveyance for his family, his family being at the time on a visit to the father of the plaintiff’s wife. That the defendant Webb, under the direction of the other defendants, seized and took out of the possession of the plaintiff his said horse or mare and spring wagon and wagon gears. That the property so taken, was taken to the premises of Hicks, one of the defendants, and there detained by the defendants and each of them, against the plaintiff; who also proved damage, sustained by reason of such taking and detention.
The defendants then offered to read to the jury the attachment papers, consisting only of an account, an affidavit by Hicks, one of the administrators of Lahn, an attachment with a return thereon, and the judgment rendered on the return day, the 12th of November 1856. To the admissibility of these attachment proceedings, thus offered, the plaintiff objected, but the court overruled the objection, and permitted the same to be read to the jury. To which ruling of the court the plaintiff excepted.
From the second bill of exceptions, it appears that the defendants further gave in evidence, that the goods and chattels taken out of the possession of the plaintiff, and mentioned in the declaration, were taken by Webb, the constable, under the said attachment proceedings, and that the goods and chattels were held under the said writ of attachment against the plaintiff. And the plaintiff then proved, that there was no affidavit made by the plaintiffs in the attachment proceedings, other than the one appearing in the proceedings; that there was no such affidavit, or copy thereof, set up, as required by the act of Assembly; and that the plaintiffs in the attachment proceedings did not file a short note in the said proceedings, to be set up at the court house door.
“1st. That the said attachment proceedings, given in evidence as aforesaid, are void, and do not show and afford sufficient justification to either of the defendants in this cause, for taking or interfering with the property in question, if the jury believe that such property was taken or interfered with by the defendants, while in possession of the plaintiff.
“2nd. That the said attachment proceedings, given in evidence as aforesaid, are, upon their face, void, and would be insufficient to justify an officer in the execution of the said writ of attachment.
“3rd. That the defendants’ second plea, as severally pleaded by them, is insufficient in law, and that the matters and things therein set forth, form no sufficient justification to the said defendants, or either of them, in this case, as an answer to the action.”
The court refused to grant the prayers, or either of them, but was of opinion, and so instructed the jury, that the said attachment proceedings were a sufficient justification to the defendants, and that the plaintiff was not entitled to recover. To which opinion and refusal of the court to grant the prayers, the plaintiff excepted.
It has been supposed, that because an account, with an affidavit thereon, was found among the attachment papers, there was no necessity for filing a short note, and sending a copy of the same with the writ. But this is not a correct supposition. The 1st section of the act of 1795, provides, that at the time of making application for a warrant for an attachment, the party is to make oath “that the debtor is bona fide indebted to him, or her, in the sum of-, over and above all discounts, and, at the same time, is to produce the bond or bonds, bill or bills, protested bill or bills of exchange, promissory note or notes, or other instrument or instruments of writing, account or accounts, by which the said debtor is so indebted.” And the 3rd section contains the provision mentioned in Stone vs. Magfuder fy Brooks, with regard to the indispensable necessity for issuing a capias and filing a, short note, expressing the
In the statement of that case, by the reporters, it appears, that on the 8th of May 1837, “the plaintiffs tiled an affidavit of their debt, &c., and a warrant of attachment was issued on the same day, by the clerk of Prince George’s county court. On the 28th of June 1837, a writ of capias ad respondendum, and short noté of the plaintiffs’ claim, were issued and sent to the sheriff.”
Upon an examination of the original record, we find that the claim of the plaintiffs was a judgment in the circuit court of the District of Columbia. A copy of the record of which judgment was annexed to the affidavit filed by the plaintiffs, on the 8th of May 1837. And, notwithstanding this, the court held the attachment to be invalid, because the capias was not issued, and the short note was not filed, and a copy thereof sent, until some time subsequently to the issuing of the attachment.
What has been said is deemed sufficient to show that the first and second prayers of the plaintiff' should not have been rejected by the court.
It is rather doubtful whether what is stated as the third prayer, should be considered a demurrer to the second pleas, or as a prayer. In neither aspect, however, can it be sustained. It is based upon the assumption that those pleas are insufficient in law, and that the matters and things therein set forth, form no sufficient justification to the defendants, in answer to the action. But we have said the general allegations in the pleas, in regard to the issuing of the attachment, are to be considered as meaning that the writ was legally issued. And if so considered, the matters and things alleged, or set forth, would amount to sufficient justification.
Believing, as we do, that a want of the short note rendered the attachment void, we must say the court did wrong in expressing the opinion and instructing the jury “that the said attachment proceedings were a sufficient justification to the defendants, and that the plaintiff was not entitled to recover.”
The views which have been stated, render it unimportant
The judgment on demurrer, in regard to the 5th replication, is affirmed, but reversed in relation to the 6th. We reverse on the first and second prayers, and affirm on the third. We also reverse for error in the opinion of the court and instruction given to the jury.
Judgment reversed, and procedendo awarded.
