State ex rel. Russell v. Moore

19 Mo. 369 | Mo. | 1854

Soott, Judge,

delivered the opinion of the court.

1. The first ground of demurrer to the plaintiff’s petition is, that the proper parties are not made plaintiffs. It is maintained that the suit should have been brought in the name of Wm. Russell and his wife, they being the real parties in interest, and not in the name of the state of Missouri. The action is on a sheriff’s bond, which is, by law, made payable to- the state of Missouri, and is against the sheriff and his sureties. In the construction of the present practice act, it has been held, that the obligee of a bond, and the payee of a note are the proper persons in whose names suits should be instituted on such instruments. They are the trustees of an express trust within the exception of the act. Harney v. Dutcher, 15 Mo. Rep. 91.

Another objection to the petition is, that a cause of action which lies against the sheriff alone, is joined with one against both him and his sureties. It is alleged in the petition, as a breach of the condition of the bond, that the sheriff levied an attachment on property belonging to the plaintiff’s wife, which was not liable to that process under the statute regulating attachments. Other breaches of the condition- of the bond are likewise averred in the petition, for which it is conceded the sheriff and sureties would be jointly liable. It is argued for the defendant that, for such wrongful acts of the sheriff, the sureties in his official bond are not responsible — -that the act constituted a trespass for which the sheriff alone is liable.

2. It is an undoubted principle, that the master is not liable for the wanton acts of those whom he may employ. If an agent, transcending the limits of his authority, wantonly commits a trespass, his principal is not liable to an action for such wrong ; but the sheriff is liable for all acts done by his deputy, as such; for all abuses, for every perversion of the authority with which he is entrusted, he is liable, though they may be committed by his deputies. He is responsible for all trespasses done by a deputy, by color of his office. This is a well established principle. 6 Bacon, tit. “ Sheriff,” 156.

3. The law of attachments relieves from that process all property exempt from execution by law, in favor of those who are residents of this state. Trespass lies against an officer for seizing under process property exempt from execution. Are, then, the sureties of a sheriff liable for trespass committed in the execution of process in his hands ? The sheriff’s bond is conditioned for the faithful discharge of the duties of his office. Is it a faithful discharge of his duty to pervert process placed in his hands, to the injury or oppression of another ? The office of sheriff is a very important one. He is entrusted with very great powers, and for the safety of individuals, the law, in its wisdom, has seen proper to require of him surety for his good conduct. It would be hard, if a sheriff, by virtue of the process placed in his hands, should oppress or ruin individuals, and they should have no other security than his own resources. He may be insolvent, and unable to respond in damages out of his own estate. Such a condition of things would drive men to a resistance of the execution of the process of the law. We are not without authority on this question. In the case of the Commonwealth v. Stockton and his sureties, 5 Monroe, 193, it was held, that a person on whose property a sheriff levies an execution against another, may have an action for his use on the sheriff’s official bond against the sheriff and his sureties. So, in the case of Carmack v. The Commonwealth, 5 Binney, 184, it was decided that the sureties of a sheriff are liable in damages for the sheriff’s trespass, in seizing and selling goods of one under execution against another. The condition of the bond sued on in that case was substantially the same as that required by our law.

The objection that there was no order of the court requiring the sheriff to restore the attached property, and that there was no demand of the property before the institution of the suit, cannot be sustained, as the action is founded on the allegation of injuries sustained by the loss and destruction of property, whilst in the custody of the sheriff. Under such a state of facts, no order for the demand or delivery of the goods was necessary, as such steps would have been nugatory.

The other judges concurring,

the judgment will be reversed, and the cause remanded.