| Md. | May 27, 1864
delivered the .opinion of this 'Court:
The record in this case presents for óur decision,, only, -questions of pleading. The appeal was taken from a judgment of the Superior Court, sustaining the defendants’ demurrer to the replication, and brings before us for examination the whole proceedings, it being the office and effect of-a. demurrer to carry the Court back to the first error.
The suit was-an action of damages brought by the appellant, and the forms of proceedings are governed by .the Act of 1856, ch. 112.
First. The declaration. To this three objections have been urged by the appellees in the argument:
1st. That value was of the substance.of the issue, and ought to have been alleged. (Art. 5, sec. 115, page 160.)
The tort complained'of in the declaration, is, that the defendants "wrongfully deprived the plaintiff of the rue and possession of the plaintiff’s goods, that is to say, one hundred barrels of flour, and-the plaintiff claims one thousand dollars.”
The action is not to recover 'the value of' the flour, but damages for the alleged wrong, to le asres:ed by tho
2nd. In this case time was not material, and it wás not necessary to allege the time when the wrong w,as committed. Act of 1856, Art. 2, sec. 111, page 160.
3rd". It was sufficient to aver that the act complained of was wrongfully done, without specifying the mode or manner in which it was done.
The declaration follows the form prescribed by the Act, sec, 29, page 168, and must be held sufficient.
Second. The plea. This we consider to be fatally defective, and the objections_ to it well taken. If true in every •particular as pleaded, it constitutes no sufficient defence to 'the action. It avers that the flour was taken by th,e sheriff under an attachment on warrant, &c., commanding him to take the goods and chattels of certain parties trad-under the firm and.style of Howard & Poor; that Hall and Loney are. the plaintiffs in said attachment suit; that the sheriff took said flour into his custody as the property of said-Howard &• Poor; and that said attachment suit; is still pending. „ . '
This is not a denial of the allegation in the declaration, that the flour was the property of the plaintiff, nor is it-an averment that it was the property of Hqward"& Prior. If the sheriff, at.the instance and by the direction, of'the defendants, took it as the property of Howard & Poor,' when, it was, as alleged, the property of the plaintiff, such taking would he wrongful, and an action would lie against the sheriff or the attaching creditpr, at whose instance, and hy whose procurement, the wrong was done. It -is like the case of a sheriff taking the goods of one person, upon a fieri facias issued against another; for which, it is well settled, an action may he maintained by the real, owner against the sheriff, and the plaintiff in the execution, if he' is privy; to the wrong. 1 Chitty’s Pl., 180.
Nor is it any defence to the action, that the attachment suit, xinder which the sheriff took the goods was still pending and uh decided. The right of action accrued as soon as the wrong was done. The party was a stranger to the attachment suit,, and was not hound to intervene therein and claim the goods, though lie had the option to do so. 10 Md. Rep., 14.
Nor was it necessary, for him to await the determination of that suit, for he might thereby he barred of his remedy by limitations, which began to run as soon as the right of action accrued, which as we have said, was upon the wrongful taking by the sheriff.
The plea being insufficient, it is not very material to consider whether the replication is defective, except to .say that we do not consider it objectionable on the ground of a departure. The declaration alleges that the defendants wrongfully took. The plea is, that the sheriff took at the suit of the defendants. The replication avers, that the sheriff took at the instance and by the direction of the defendants. This is equivalent in law to a taking by the defendants, and is no departure.
The plea being insufficient, the plaintiff was entitled to judgment upon the demurrer, and it was error to give judgment for the defendants; it must therefore he reversed, and under the Act of 1826, ch. 200, sec. 10, the case will he sent back under procedendo, in order that such further proceedings may be bad in tbe Superior Court as justice and the rights of the parties require, and as are in conformity with the opinion of this Court.
Judgment reversed, and procedendo awarded.