2 Mass. 188 | Mass. | 1806
After stating the substance of the declaration, to gether with the issue and verdict, proceeded : —
It has been since moved, in the defendant’s behalf, that judgmen*185 should not be entered for the plaintiff according to this verdict. This motion is offered upon the general ground, that the plaintiff’s declaration does not show a sufficient subsisting cause of action The objections to it are,
1st. That a sheriff is not answerable in this manner for the insufficiency of bail.
2dly. That, if answerable in any case, it is only when the in sufficiency of the bail is notorious, and the officer acts maliciously, or deceitfully, or at least wilfully: that the declaration * containing no averments to this effect, the verdict has [ * 194 ] not found a wilful breach or neglect of duty in the officer charged.
3dly. That the plaintiff has waived any right of action, which he might have had for the supposed misconduct of this officer, by accepting the bail bond, and pursuing the usual process upon it, as set forth in his declaration.
The right of a party arrested in a civil action to be delivered upon bail, and the duties and restraints incumbent upon officers intrusted with the authority of making such arrests, depend chiefly, in England,
The practical and judicial construction, in England, of this statute, in the particulars applicable to the present inquiry, has been, that the sheriff is obliged to admit the party arrested to bail, and if he refuses sufficient sureties, he is liable to an actibn by the party injured;
In this state, the right of a party arrested in a civil action to be delivered upon bail depends principally upon the same ancient statute. But the statute
By this statute
It seems to be, by the effect of this statute, that bail to the sheriff' is also bail to the action; and avails immediately to the benefit of the party at whose suit the bail is taken.
A necessary consequence of these provisions has been, that the sheriff’s return, that he has taken the body and holden to bail, is a complete execution of his writ; that the party bailed is thereby sufficiently in court for the action against him to proceed to final judgment; that the sheriff is therefore not liable to any compulsory process for a more perfect execution of his writ, if the party at whose suit the bail is taken dislike the sureties. For their suffi ciency he is compelled to rely upon the discretion of the sheriff; and if the sureties prove insufficient, the party injured is without remedy, unless an action may be permitted him against the sheriff for his negligence or misbehavior in accepting and returning insufficient sureties.
[*196] * The general rule is, that ministerial officers, who misbehave negligently, or wilfully, in the execution ol their offices, are liable in an action upon the case, at the suit of the party injured.
The decisions in England which have been cited at the bar. and from which it appears that actions upon the case are there maintainable against the sheriff for taking insufficient pledges in bonds of replevin, are also applicable, from their analogy, to the present case.
By the statute of Westm. 2, (13 Edw. 1, c. 2,) it was provided, that the sheriff should take pledges, not only to prosecute ■ the action, but also to return the distress, if a return should be adjudged. And the statute 11 G. 2, c. 19, requires that the officer granting a replevin on a distress for rent shall take from the plaintiff, and two responsible persons as sureties, a bond in double the value of the goods distrained, conditioned for prosecuting the suit with effect, and for a return of the goods, if the right be determined against him.
Since this last-cited statute, it has been determined, in the cases of Prowse vs. Pattison, 13 G. 2, and Saunders vs. Darling & Al. 10 G. 3, cited in Buller’s
The analogy of these decisions to the present case is very obvious The authority and discretion intrusted to the sheriff in delivering to bail a party arrested, and in delivering goods replevied to the plain tiff in the suit, upon sufficient pledges or sureties, are of the same nature and extent. An action upon the case for the injury sustained in the latter instance, when insufficient pledges or sureties are taken, is not a remedy provided by the statute, but by an application of the rules of the common law to enforce the provisions of the stat ate. And a like application of the rules of the common law t<
The cases cited by the plaintiff’s counsel of decisions in this Court, Willet & Al. vs. Hale, and Brown & Al. vs. Allen, are direct authorities in support of this action upon the first point proposed in the motion before us.
Upon the second point proposed, that the sheriff is only liable, when, in taking insufficient bail, he acts wilfully, I have had some difficulty. In the case of Willet & Al. vs. Hale, the declaration contains an averment to this effect, that the deputy had taken insufficient bail, of which he was then and there well knowing. In the case of Brown & Al. vs. Allen, it was averred by the plaintiff that the bail taken was in no credit, and wholly insufficient, of which the said Symmes (the deputy sheriff) was well knowing. These were therefore cases of wilful misbehavior.
In the case before us, the averments in this point allege against the officer a neglect of his duty, but not a wilful misbehavior. If an officer may be responsible for a mistake respecting the sufficiency of sureties accepted as bail, arising from negligence only, without design, then the averments in this declaration [' * 198 ] *are sufficient. And I am of opinion that the sheriff, when taking bail in a civil action, is responsible, to this extent, for a mistake in such a case, happening by his negligence, though without design. In England., the sureties accepted as bail by the sheriff are taken at his risk.
A similar construction has been given in England to their statutes, which have been already mentioned, respecting pledges and bonds to be taken in suits of replevin. Insufficient pledges are no pledges.
In the case of Concanen vs. Lethbridge, the charge against the sheriff, by the averments in the second count, is, that he did not take pledges sufficient, &c., for that the pledges taken at the time when, &c., were, and now are, insufficient and totally irresponsible, &c. There is no averment of any wilful misbehavior, or that the insufficiency of the pledges was known to the officer; and the judgment against the sheriff is after a general verdict upon both
The same case, and indeed all the cases which have been cited, are authorities upon the third point. The actions against the sheriff for taking insufficient pledges in suits of replevin, and the actions decided heretofore in this Court, were brought and sustained after the parties injured had pursued their remedies upon their respective bonds as far as the course of proceedings in the several cases would permit. And their subsequent recourse to the sheriffs, after other remedies had failed of effect, was not objected to on this ground. In the case before us, the sheriff has been deprived of no advantage by the diligence of the plaintiff to obtain the satisfaction of his debt from the parties more immediately chargeable. There is then, in my opinion, no sufficient cause shown for arresting judgment.
briefly recited the substance of the [*199J declaration and verdict, and then said: —Three reasons are given why judgment should not be rendered on this verdict.
1. That an action will not lie against a sheriff for taking insufficient bail.
2. That it is not alleged in the declaration that the deputy knew, at the time he accepted Smethurst as the bail of Newhall, that he was insufficient.
3. That if such action would in any case lie, the plaintiff here, by accepting the bail bond, and prosecuting his scire facias against the bail, recovering judgment, and committing & to jail, (and he being discharged out of confinement,) has, thereby, released the sheriff.
As to the first point, it is certain that an action will not lie in England against the sheriff for taking insufficient bail on an original writ.
Before the statute of 23 H. 6, c. 10, a sheriff was not obliged to take bail at all; and although by that statute his duty in this respect was altered, yet the return of cepi corpus continued the same as before. The plaintiff may accept or refuse the [ * 200 ] bail * bond; if he accepts it, he releases his remedy against the sheriff; if he refuses, he may proceed against him until his demand is fully satisfied. The sheriff may, if he chooses, put in bail above, and rely for his indemnity on the bail which he accepted. If he does not put in such bail, the plaintiff may proceed against him as for a contempt.
Here, the bail taken by the sheriff answers all the purposes as well of the bail below, as of the bail above, in England. It is “ for the appearance of the party to answer the suit, and to abide the order and judgment of the court thereon.” And if it is reasonable that the sheriff there, in all cases, whether the bail be or be not sufficient, should be responsible to the plaintiff, it is proper here, if he either wilfully or negligently accepts that which is insufficient, that the plaintiff should have his remedy against him. It is true that it is there determined that an action . will not lie against the sheriff for taking insufficient bail ; and it is very properly so determined ; because, as the sheriff may, in every event, be compelled to satisfy the plaintiff, it is nothing to the latter, and he has no cause of complaint for not being able to support an action, because, if the bail is insufficient, it affects in no degree his remedy, which is prompt and effectual. But here, unless an action can be supported for taking insufficient bail, the plaintiff is remediless, however negligent or faulty the conduct of the sheriff may have been.
This case, here, compares in principle and reason much nearer, so far as respects the duty of the sheriff and the rights of the plaintiff, to the proceedings in England in the action of replevin, than
It is said that insufficient pledges are no pledges, and it is true that it is the same thing to the defendant. Indeed, in this, as in all cases, the principle seems to be established, and it is very proper that it should be, that no man shall suffer for the faults or negligence of the sheriff; and the application of this principle is decisive upon the merits of this question.
As to the second reason given, and relied upon by the defendant’s counsel, that it is not alleged in the declaration that the deputy sheriff hneio that, at the time he accepted S', as the bail of N., he was insufficient, — I have looked into the English books of entries; and in declarations against sheriffs for taking insufficient pledges in actions of replevin, there is, generally, no averment of the knowledge of the sheriff: the allegation is general, that the sheriff did replevy and deliver to the plaintiff without taking sufficient pledges.
I am of opinion that the sheriff, by taking insufficient bail, acted contrary to the duty of his office; and that the plaintiff, not having been able to collect his debt of the principal debtor, has thereby sustained an injury for which the law will give a remedy by this action.
Judgment according to verdict.
Note. — Sedgwick, X, after the above opinions were delivered, observed that the late Chief Justice Dana, who had heard this cause argued, had, while in office, declared to him his concurrence on all the points.
Daltons Sheriff, 356.
2 Inst. 186. —2 Sound. 59.— Salk. 99.
Cro. Eliz. 624.
Cro. Eliz. 808, 124, 852.-3 Bl. Com. 290. — Style, 212, 234.
Stra. 876. — 3 Lev. 343.
12 Mod. 447. — 1 Mod. 33, 57, 244.
Sty. 212, 234. — 2 Vent. 237
Cro. Eliz. 624.
1784, June 30.
Sect. 1.
Sect. 2.
Bull. N. P. 64, 69. — 1 Vent. 55.- 8 Rep. 141. — 1 Sid 305.
Bull. N. P. 60, 61.
2 H. Black. 36.
Ibid. 547.
4 Term R. 433.
Cro. Eliz. 808.
2 Inst. 337, 338
Com Dig. title Bail, K. 5. — 2 Saund. 59, 60, 61. — 1 Mod. 122, 245. — 2 Mod. 83.
a) The bond is meiely for the indemnity of the sheriff, which he may waive. — Holmes vs Lansing, 3 Johns. Cas. 73. —Peters vs. Henry, 6 Johns. R. 121. — Barry vs. Mandell, 10 Johns. R. 563. — Kip vs. Brigham, 7 Johns. R. 168. — M'Intire vs. Woods, 5 Johns. R. 357.
3 Black. Com. 290, 291. — 2 Williams’s Sound. 60, in notis.
1 H. Black 433
2 Inst. 340, — Vin. Abr. tit. Pledges, Let. H. Bull. N. P. 60.
Lilly, 37 — Brownlow, 25, 26, &c.
Gerrish vs. Edson, 1 Ad. N. H. R. 82. — Long vs. Billings, 9 Mass. Rep. 479. — Rice & Al. vs. Hosmer, 12 Mass. Rep. 127. — Cæsar vs. Bradford, 13 Mass. Rep. 169.— Young vs. Hosmer, 11 Mass. Rep. 127. — Mather vs. Green, 17 Mass. Rep. 60.— Rayner vs. Bell, 15 Mass. Rep. 367. — Sherwood vs. Pearl, 1 Tyl. 241.