delivered the opinion of the court. He recited the facts in the foregoing language, and continued:
The facts stated in the petition are admitted by the demurrer, and, for the present consideration of the case, must be taken as *109 true. The statutes of Missouri, which were in force when the bonds mentioned in the petition were issued, and which still remain in force, provide as follows: There shall- be a collector of revenue for every county, who shall give bond conditioned that he will faithfully and punctually collect and pay over all State, county and other revenue for the two years next ensuing the first day of March thereafter. After the tax book for the year has been, corrected, and-the amount of the county tax stated therein, the County Court shall cause the same to be delivered to the collector, and he'shall be charged with the whole amount of the tax book so delivered to him. The collector, shall diligently endeavor and use all lawful means to collect the taxes which he is required to collect in his county. After the first day of October he shall have- power to seize and sell the goods and chattels of any person liable -for taxes, in the same manner as goods and chattels are or may be required to be seized and sold under executions issued in 'judgments at law; .and no property shall be exempt from seizure and sale for taxes due on lands and personal property. The collector, having made settlement according to law of the revenue collected, by him, shall pay the amount found due into the county treasury.
When a demand against a county is-presented to the County Court,' the court shall- ascertain the amount due and order it to. be paid out of the-particular -fund — designating it — applicable to the payment of - such demand, and, order their clerk to issue a warrant therefor on the treasurer of "the county, which shall designate the particular fund out of which the same is to be paid.
The treasurer of the county is required to make an entry in á book to be kept by him of all warrants for money lawfully drawn by the County Court presented to him for payment; and all warrants so presented shall be paid out of the funds mentioned in such warrants, and in the order in which they shall be presented for-payment. See sections 5370, 5394,- 6733, .6754, 6774, 6821, 6822, Revised Statutes of Missouri of 1879.
The question presented by the demurrer to the petition is not one of the measure of damages. If the plaintiff has sustained any substantial injury by reason of the wrongful acts of *110 the defendants set out in the petition, fqr which he is entitled to his action against them, the demurrer to the petition should have been overruled.
It is evident from the provisions of the statutes-of Missouri, whose substance has been given, that the money received by the collector of Scotland County in payment of the special tax ordered by the County Court bo be collected for the payment of the judgment of the plaintiff and other judgment creditors, would, when collected, constitute a separate fund in the county treasury, applicable to this purpose. If the special tax had been collected, the plaintiff would have had such an interest therein that a court of equity would at his instance enjoin its diversion to any purpose save that for which it had been levied and collected, and compel its payment to the satisfaction of the judgment of the plaintiff.
Meriweather
v. Garrett,
The writ of mandamus under which the collector, according' to the averments of the petition, was proceeding to collect the money to pay the judgment of the plaintiff, was a substitute for the writ of fieri facias, and was the only remedy by which the plaintiff could enforce satisfaction. He had, therefore, as clear an interest in the money to be raised by the special tax for the payment of his judgment, as he would have had in the money to be collected by the sheriff on execution if his judgment had been- against an individual. It would seem fairly- to follow that he had the same rights in the one case as in the other, against those 'who, to prevent the satisfaction of his judgment, unlawfully interfered with the officer in the discharge of his duties.
It is plain that the injury of which the plaintiff complains is not one common to himself and the public at large, as it would have been had the defendants interfered to prevent the collection of the general taxes of the county. The alleged unlawful *111 acts of the defendants could injure only the plaintiff and the other judgment creditors of Scotland County, for whose bene- . fit the special tax was levied. If there is any cause of action against the defendants, it belongs to the plaintiff and other judgment creditors individually, and,the public has no share in' it. The objection that the plaintiff is only injured in common with all the other members of the body politic, and has no separate and individual cause of action, cannot be successfully urged.
The right of a judgment creditor to proceed by action against those who rescue the person of his debtor arrested on mesne or final process, of interfere with the goods of his debtor so as to prevent a levy or sale by the sheriff to satisfy his judgment, is well recognized at common law.
Thus, in Smith v. Tonstall, Carthew, 3, 4, adjudged on demurrer in the King’s Bench and affirmed in the House of Lords: A, a judgment creditor, sued B for procuring J. S., the judgment debtor, to confess a judgment in favor of one J. N., to whom he did not owe anything, and J. N. sued out execution on this feigned judgment by virtue of which he seized all the goods and chattels of J. S., which he esloined to places unknown and converted to his own use, by reason whereof the plaintiff lost his debt. Held, that the action lay.
In Coniyns’s Digest, under the head of Action on the Case for Misfeasance, A. 5, it is stated that an action will lie for rescue of a person arrested upon mesne or judicial process, citing 2 Cro. 419, 486; Cro. Car. 109; or of goods taken in execution. And the action lies by the party to the suit in which the arrest was, citing 2 Cro. 486 ; Cro. Car. 109; 2 Eolle’s Ab. 556, pi. 14, 15.
Under the head of Bescous, D. 2, the same author says: “ So, if a person arrested upon mesne process be rescued, an action upon the case lies against the rescuers by the plaintiff in the suit; for he has the loss and no remedy against the sheriff,” referring to 2 Cro. 485-6, above cited, and also to 3 Bulst. 200.
In 2 Bolle’s Ab. 556, pi. 14, 15, it is said : If a sergeant of London or bailiff of the counter take a man on a capias in process at my suit, and J. S. rescues him out of his pessession, *112 I may have a general writ of trespass against him, because the sergeant' is, for this purpose, my servant as well as the King’s, and because the taking out of the sergeant’s possession, he being my servant, is a taking out of mine. Trin. 15, Jac. I., Wheatley v. Stone, adjudged on a writ of error at Sergeant’s Inn. But.I may have action in the case as well. Trin., Jac. I., Speere v. Stone, affirmed same time; S. C. Hobart, 180, sub nom. Wheatley v. Stone.
• So in Mynn v. Coughton, Cro. Car. 109, cited in Bac. Ab., Execution O, it was held that, if a defendant be rescued after being taken on a capias ad satisfaciendum, the plaintiff may have an action for the misfeasance against the rescuers, for he is the party who hath the loss, and to whom the injury is done, and he ought not to be compelled to sue the sheriff, who may be dead, and if he recover, .the rescuers' may plead it if sued by the sheriff, so that there is no danger of being double-charged. 3 to 7. S. C. Hutton, 98, sub nom. Congham's Case.
. In May v. Sheriffs of Middlesex, Cro. Jac. 419, which was an action on the case for escape on mesne process, it was held that rescue may be pleaded iñ bar, but not for escape on final process. On mesne process, the sheriff was not bound to take posse comitatics, and on rescues returned by sheriff on mesne process, process may be awarded against the rescuers, and an. action on the case, lies against' them. S. C. 3 Bulst. 198-201, where a full argument by Coke and Doddridge, is reported. The latter refers to Fitz. N. B., 102, to show that the party may sue rescuers.
Hodges v. Marks, Cro. Jac. 485, was an action oh the case for rescuing plaintiff’s debtor out of sheriff’s possession after arrest on mesne process whereby the debtor escaped and went to places unknown; Held good, for the loss is the plaintiff’s, as he cannot sue the sheriff; and therefore it, is reason that he should have action against those who did the' injury to bim whereby he lost his process and his means to recover his debt. S. P. Kent v. Elwis, Cro. Jac. 241. See also 3 Bulst. 200; 5 Mod. 217; 2 T. R. 5, 126.
In Bentley v. Donnelly, 8 T. R. 127, which was an action by *113 plaintiff in primer action against rescuers of defendant after arrest on mesne process, the action was sustained.
These principles have been recognized by courts of high authority in this country.
In
Yates
v. Joyce,
Penrod
v. Mitchell, 8 S.
&
R. 522, was an action on the case in the nature of a writ of conspiracy for fraudulently withdrawing the goods of the defendant in an execution, from the reach of the plaintiff. It was not questioned that the action would lie. The court held that the measu,re of damages was the value of the goods thus withdrawn, and not the amount of the judgment on which the execution -was issued. In
Mott
v.
Danforth,
*114 The three oases last cited extend the rule further than the exigency of the present case requires, and further than this court, has been disposed to go.
These authorities establish the right of a. judgment cred-; itor to his action against rescuers of the person or goods of the debtor, seized by the sheriff to satisfy, the judgment, or against one who prevents the seizure of the debtor’s goods on execution ; and the principle on which they rest is directly in the face of the1 contention of the defendants. in error, that the plaintiff has no legal interest in the taxes .to be collected to pay his judgment, and has sustained no legal damages by the alleged acts of the defendants. ¥e think they support the action in the present case.
Of the authorities cited by the counsel for the defendants in error in support of the demurrer, the principal case is
Adler
v. Fenton,
In the other cases cited by the defendants * the plaintiff was merely a general creditor, and had no judgment, attachment, or lien, the enforcement of which was obstructed by the de *115 fendant, or the cases were otherwise inapplicable to the question in hand.
In the present case there was a conspiracy, tortious acts in furtherance of it, and consequent damage to the plaintiff. The property, seized by the collector was in the custody of the law. The tax-payers, for whose unpaid taxes it had been seized, had no longer any right to its possession or use, and could not. sell or otherwise dispose of it. It was devoted by the law to be sold to raise a fund to jiay the plaintiff’s judgment. The plain-, tiff had, therefore, an interest^ which the law gave him, in the property and its sale, and suffered a direct damage from the alleged acts of the defendants by which a sale was prevented.
The plaintiff, according to the averments of his petition, had. recovered his judgment against the county; and he had obtained his mandamus to the County Court directing it to levy and cause to be collected a special tax to pay the judgment. The collector of the county, in obedience to the orders of the County Court, which were themselves in obedience to the mandamus of- the Circuit Court, was. proceeding tó collect the tax, and had' levied on property to that end, and was about to sell it ■ when the. threats and hostile demonstrations of the defendants defeated the sale, and the petition averred the defendants continued to overawe and intimidate the tax-payers of the county, so that they did-not pay the tax, and the collector had not been able, by reason thereof, to collect .the tax.
The plaintiff cannot sue the collector, for he has done his . duty, and no suit lies against him. Unless the plaintiff has a cause of action against the defendants, he is without remedy. To. houl that the facts of this case do not give a cause of action against them would be to decide that a citizen might be subjected to a wilful and malicious injury at the hands of private persons without redress; that an organized band of conspirators could, without subjecting themselves to any liability, fraud-ulently and. maliciously obstruct and defeat the. process of the courts, issued for the satisfaction of the judgment of a private suitor, and thus render the judgment nugatory and worthless. Such a conclusion would be contrary to the principles of the ' common law and of right and justice.
*116 It is no answer to the case made by the petition to say, as the defendants, by their counsel do,- that the judgment of the plaintiff is still in force and bearing interest, and the liability of the county still remains undisturbed. What is a judgment worth that-cannot be enforced? The gravamen of'the plaintiff’s- complaint is that the defendants have obstructed, and continue to obstruct, the. collection of his judgment, and he avers that he has been damaged thereby to the amount of his judgment and interest; in other words, that by reason of the unlawful and. malicious conduct of the defendants,-his judgment has been rendered worthless. To reply to this that the judgment still remains in force on the records of the court is an inadequate answer, to the plaintiff’s cause of action.
It follows from the views we have expressed that the Circuit Court erred in sustaining the demurrer to the petition.
■ Judgment reversed, and the cause remanded for further proceedings in conformity with this opinion.
Notes
Lamb
v.
Stone,