44 Pa. 510 | Pa. | 1863
The opinion of the court was delivered, by
There is but a single point of inquiry in this case, and that involves the question how far a sheriff is liable for the safe custody of goods taken in execution by him, and the degree of care to be observed, whether of an ordinary bailee for hire, or a common carrier or innkeeper, so as to raise a responsibility for loss by theft. Does it most resemble the former, calling only for ordinary care and diligence on part of the sheriff, and consequently only fastening liability for the loss of property seized, in the absence of such care and diligence; or the latter, where the exclusive control is followed by a stricter rule of accountability ? It is quite true that we have no adjudicated cases directly in point, in this state, but we have analogies so striking as to be entitled to almost the weight of direct authority on the subject. Eelying
In delivering the opinion of the court, Gibson, C. J., uses this language: “ This may seem sharp doctrine towards sheriffs; but it is not more sharp than the law is in the ease of an escape by reason of deficiency of the jail; or in case of a rescue by rebels or insurgents, however overwhelming the force; although the sheriff would be excused for a rescue by foreign enemies, or for an escape in consequence of sudden fire; and in this respect the custody of prisoners resembles that of goods bailed to a carrier, who is answerable for a loss of them, except when it happens by the act of God, or the common enemy. The strictness of the law in this respect arises from public policy. The sheriff takes his office for better, for worse; losses in particular instances, being compensated by extraordinary gains in others. At all events, it is better he should bear the risk of occasional loss, than that the public should be left unprotected.” If the direct point in this case is not covered by this judgment, the reasoning certainly seems to cover the whole ground.
Why should a sheriff, having in custody the person of a defendant as a satisfaction of the judgment on which his writ is founded, on principle, stand on different footing from that on which he would be if he had the custody of the defendant’s property for the same purpose ? It is not easy to see the distinction, and a more difficult task would be, to point out where the argument, good in the one case, is defective in the other. The proposition is, that authority settles, that ordinary care is not sufficient in the one case; but inasmuch as direct authority does not exist either way, ordinary care is sufficient in the other. This is not a non sequitur. It seems to me to be more reasonable to apply the strict rule to the custody of goods than to the person; for if they be stolen the creditor cannot levy again, and he must bear the loss without the slightest default of his own; whereas, for an escape, if it is the defendant’s own act, he may be again arrested. In the one case the debt is absolutely satisfied by the levy, in the other it is only contingently so.
In Green v. Horn, 2 Penna. Rep. 167, decided a number of year’s subsequently to Wheeler v. Hambright, and in an opinion by the same judge, similar doctrine was asserted and illustrated. “Let it be known,” says the learned judge, “that the question of liability is to depend on what a jury may deem the proper
A slight paraphrase of this quotation renders it as justly applicable to the safe-keeping of the property, to answer the execution, as it was to the secure detention of the body, when that was a means to enforce payment of debts. The sheriff, when he levies, is armed with authority to become the exclusive custodian of the property seized, and it is his duty to become so in fact, if he would not risk its abstraction. This care is his personal interest, if the law requires him to account for the property, unless he is divested of it by the act of God, the public enemies, the law, or by some irresistible accident, such as sudden fires, or the like. Nothing but such a rule we think adequate for such a trust, and we believe the stringency of the law in Pennsylvania in regard to sheriffs, has so much increased the care of incumbents of the office in the discharge of their duties, that it accounts for the fact that we have but few cases, comparatively speaking, against sheriffs for deficiency in the discharge of their official functions. The opinion of jurors of what is due care and diligence, although in many cases it is necessarily a standard of liability, is at best a loose one, especially in regard to officers of influence, such as sheriffs. It would be found to be too flexible for exact justice. Through sympathy for the officer the debtor and creditor would be liable to be forgotten. One rule would govern one case, and a different one another. It is infinitely better, therefore, to contract the necessity for a resort to vague standards than to enlarge it. We shall doubtless find no lack of good and efficient men ready and willing at all times to risk the responsibility of the rule for the sake of the office.
An objection is sometimes urged that the officer is allowed no fees for watchmen, or for the removal of goods. This is doubtless because the law-making power has supposed that the taxable costs for executing process, and in making sales, are sufficient for this purpose. If they are not, the law should be altered; for it would be a bad system that would take away the control of the debtor over his property, which may not, before sale, go into the hands of the creditor for preservation, and yet leave it liable to be stolen or embezzled while in the custody of the shei’iff.
The rule of the common law is maintained by this learned judge in the case cited, and the learned counsel for the defendant in error were led into error in citing it as sustaining their theory of the case, in not adverting to the distinction drawn between an attachment, the object of which is to compel appearance, and an execution. In the former, the sheriff is held to occupy only the position of an ordinary bailee. The reason for the ■ distinction seems to be not only in the effect between debtor and creditor as to satisfaction, but the delay before final process to dispose of the property, sometimes extending to several years, and usually continuing for at least a year, until the case is finally tried. To hold the sheriff to the strictness of the common law rule on the subject of final process to cases of attachment, would, in the opinion of this able judge, be unreasonable; but he adds, “ where property is taken on final process, it is to be kept but a short time at longest, so that’it may be closely watched and kept with this severe diligence for a few days without materially interfering with the duties of the sheriff.” Where attachment process is used for different purposes, sometimes as final, and. at others as mesne process, as it is in several of the New England states, errors on this point may easily be made as to what is the judgment of their courts, without carefully noticing the exact nature of the process adverted to. There is a distinction, well defined, I think, between the two kinds of process. It was drawn directly from the common law distinction between custody on a’ capias ad respondendum and a capias ad satisfaciendum. In the former it is said that the sheriff may return a rescue, 2 Sand. R. 3, and note; 2 Lord Raym. 1075; 12 Mod. 10; 5 Burr. 2813; which he may not do in the latter. See authorities for it above cited; see also, as to the rule of liability, Sandford v. Boring, 12 Calif. Rep. 539; Collins v. Terrell, 2 S. & M. 383; Abercrombie v. Marshall, 2 Bay (S. C.) 90.
Judgment reversed, and venire de novo awarded.