88 Md. 601 | Md. | 1898
delivered the opinion of the Court.
This is a suit upon the official bond of Joseph O. Fowler as sheriff of Anne Arundel County. The declaration alleges that Thomas H. Arnold on the 14th of May, 1897, obtained judgment in the Circuit Court for Anne Arundel County against Samuel T. Wilson, the equitable plaintiff in this case, for the sum of $148.29 and $8.15 costs of suit; that on August 31, 1897, a writ of fieri facias upon this judgment was issued out of the same Court, to the said sheriff, in virtue of which, on the 1st of September, 1897, he seized and took in execution the growing crops of corn of said Wilson upon forty acres of land, and the growing peach crop of said Wilson on about 600 peach trees, said corn and peaches being of much greater value than was necessary to satisfy said judgment and costs; that the sheriff forbade the plaintiff to pick, ship or sell the said crop of peaches, or any part thereof, and failed and neglected himself to pick, ship or sell, or to provide for picking, selling, or shipping the same, though said crop of peaches was then ready to pick and ship, and was perishable in its nature; that the sheriff so held said peach crop from the 1st to the 4th of September, when he released the levy thereon, as not necessary to protect the judgment, during which time he suffered the fruit to fall from the trees and rot upon the ground, so that the crop of peaches became utterly worthless and was wholly lost; and that the conduct of the sheriff in the execution of the writ of fieri facias was wrongful, illegal, and oppressive, and the plaintiff was thereby greatly damaged, and an action had accrued to him upon said official bond.
The sheriff and his sureties pleaded that the sheriff
We were advised by the argument of counsel that the defence was based, and the Court below rested its decision upon, the opinion of this Court in State v. Brown, 54 Md. 322, and it becomes necessary therefore to give to that decision, and to the principles and authorities upon which it is founded, careful consideration. That case was a suit upon a bond of a constable to recover damages for the taking of plaintiff’s property under an execution against a third party. There was a demurrer to the declaration which was sustained, and this Court affirmed the judgment on the demurrer, holding that the taking of a stranger’s property under an execution was not a wrong done in the discharge of the constable’s official duty, and was not within the terms of the contract entered into by the sureties. Whatever deductions may be drawn from that decision, or from the
The application of the above passage to the case at bar is not less apparent than is the sound common sense of the doctrine which it asserts.
In Knowlton v. Bartlett, x Pick. 274, the action was against the sheriff for the malfeasance of his deputy, and the Court said, “ an official act does not mean what the deputy might lawfully do; if so, no action would ever lie against the sheriff for the misconduct of his deputy.” That is to say, if only lawful acts are official acts, then the sheriff is never responsible for the acts of his deputy, since by a lawful act of the deputy no one can be injured in legal contemplation, while for an unlawful act — since not an official act — the person who is thereby in fact injured, is not permitted to sue the sheriff. It may be that the same rule cannot safely be applied between the sureties and the sheriff, as between the sheriff and his deputy — he and his deputies being regarded in law as one person — but this cannot impair the force of the language employed by the Court to define an official act. We find nothing in 54 Md. inconsistent with this expression of the Court in 1 Pick. On the contrary, we think the language of the opinion, by fair and logical deduction, entirely consistent therewith. Judge Bartol says: “ If he commits an act, not in the discharge of his official duty, he is personally liable, but his sureties cannot be held responsible therefor; it is not within the terms of their contract.” Surely it is a just inference from the above that if he commits a wrongful act in the discharge of his official duty, his sureties are responsible, and it is within the terms of their contract. Again, Judge Bartol refers to the dissenting opinion in People v. Schuyler, 4 Comstock 173, as more satisfactory in its reasoning than the majority opinion in that case by which ex parte Reed, 4 Hill 572, was overruled. He also refers approvingly to the reasoning of the able
So in State v. Conover, 28 N. J. L. 224, Chief Judge Green said: “ The complaint against the sheriff is, not that he did not perform his duty, nor that he performed it improperly, but that he acted beyond his duty; that he
Judge Haines, who delivered a concurring opinion in 28 N. J. L., says on page 230: “ It is a principle long and well established that official acts are those which are 'done by virtue of the office, such as if properly done, exculpate both the officer and his sureties from responsibility, but which if neglected, or improperly done, render both liable. If the authority is exceeded, or the duty omitted, an action may be maintained against the officer in his official capacity, and his sureties held responsible. In England no direct authority can be found upon the point, for the reason that the sheriffs there are not required to enter into official bond with sureties, but are required to be of sufficient freehold ability to meet the claims of all parties injured, and are only liable in suits against themselves, or to amercement for- neglect of duty.”
So also in Governor v. Hancock, 2 Ala. 728, which holds with 54 Md., Judge Goldthwaite said: “We will not say that the sureties of a sheriff are not liable in some cases of malfeasance, but in such we think the malfeasance must include a misfeasance also; as, for instance, if a sheriff should wantonly destroy property levied on by him, this would be a tortious act, but there would likewise be a tortious omission of"his duty which is to keep the property safely.” It was upon this view that it was held in Witkouski v. Hern, 82 Cal. 604, that though a constable seized plaintiff’s property under a proper writ, yet if he so kept the property while in his custody as that by his carelessness or negligence it was damaged, he and his sureties were responsible for the non performance of his official duty.
We think it is clear upon principle from this review
It was also contended that even if subject to levy, no valid levy was in fact made; but in levying upon growing crops, manual possession, concurrent with the making of the levy is impossible, and it is held that proper notification to the party and endorsement on the levy is all that is necessary. 8 Amer. & Eng. Ency. of Law, 310; Barr v. Cannon, 69 Iowa 20.
We think the Circuit Court was in error in granting the defendants’ prayer, and for this error the judgment must be reversed and the cause remanded for a new trial.
Judgment reversed with costs above and below, and cause remanded for a new trial.