Price v. Stone

PETERS, C. J. — Only such questions as are stated in the assignments of error, and insisted on in the argument of the counsel for the appellant, will be noticed in this opinion. Such is the uniform practice of this court. Rev. Code, Rule 1, p. 816 j 10 Ala. 109; 32 Ala. 481; 36 Ala. 721; 37 Ala. 49; 38 Ala. 318. The errors specified in the assignment, and insisted on in the appellants’ brief, are the overruling of the demurrer to the complaint, on account of a supposed misjoinder of counts, and the charges given by the court, which were excepted to, as well as the refusal of the several charges asked by the defendant. The demurrer will be first noticed. The action is against the defendants as the sureties of Grinnell, on his official bond as sheriff of Mobile County, and the ground of demurrer is a misjoinder of counts. Omitting the caption, the complaint is as follows: [See foregoing statement.] It is evident that the suit is founded on the sheriff’s official bond. The condition of this bond is prescribed by the statute. It must, “ unless otherwise provided, be made payable to the State of Alabama, with such securities as the approving officer is satisfied are sufficient ; and conditioned, in all cases in which a different condition is not prescribed, faithfully to discharge the duties of such [549] office, during the time he continues therein, or discharges any ■ of the duties thereof.” Rev. Code, §§ 157, 184. The legal ef feet of such bond is also fixed by the statute, which declares, that every official bond, executed under the Code “ is obligatory on the principal and securities thereon : 1st, for any breach of the condition during the time the officer continues in office, or discharges any of the duties thereof; 2d, for the faithful discharge of any duties which may be required of any such officer by any law passed subsequently to the execution of such bond, although no such condition is expressed therein; 3d, for the use and benefit ef every person who is injured, as well by any wrongful act committed under color of his office, as by his failure to perform, or the improper or neglectful performance of those duties imposed by law.” Rev. Code, § 169. The sheriff’s bond is evidently a bond “ with conditions.” The form of complaint on such a bond is given in the Code, on page 675. The first and second counts of the original complaint are evidently counts founded on the sheriff’s bond ; and though they are not drawn with very great technical care, they conform substantially to the precedent given in the schedule of forms attached to the Code. This is sufficient. Rev. Code, § 2630. The breach alleged comes under the third clause of section 169, above quoted. It states, in substance, that the plaintiffs have been injured by a “ wrongful act ” committed by the sheriff “ under color of his office.” For this the bond binds the sureties. This is the language of the statute. The second count is of a like character, and so is the second amended count. The first amended count assigns a different breach of ■the bond. It assigns as a breach an “ improper and neglectful performance of a duty imposed by law.” This, also, is a breach of the legal effect or obligation of the bond. Rev, Code, 169. The writ of seizure authorized the sheriff to seize the steamboat, her tackle, apparel, and furniture, and hold her until released by due course of law. Rev. Code, § 3129. The law requires, also, that while the boat remains in the custody of the sheriff, “ he must, as far as practicable, secure it against loss or injury ; and may employ a suitable person, or persons, to take charge thereof; and must therefor be allowed a suitable compensation, to be made by the court.” Rev. Code, § 3139. The failure to discharge this duty in a proper manner is a breach of the legal obligation of the bond. All the counts of the complaint seem to keep in view this violation of the bond, and base the right to recover upon it. Such counts are not counts in trespass. Trespass implies an act injurious to the plaintiff, but done unlawfully, and with force and violence. 1 Chitty’s Pl. 166,. 167 ; Rev. Code, p. 677, Form in Trespass for taking Chattels. There is, then, no statement [550] of facts in the complaint in this case, which can properly be called a count in trespass. Nor do the counts seem to have been so intended. The demurrer was, therefore, properly overruled, as there was no misjoinder of counts, and the demurrer raised no other question. 3. The charges of the court below, which were given and excepted to, and the charges asked and refused, involve the same question; that is, what amount of diligence is required of the sheriff, in order to excuse him for the accidental destruction by fire of a steamboat in his custody, which he holds under a writ of seizure issued from the City Court of Mobile, to enforce the lien created by our statute against such boat for materials and supplies. Rev. Code, §§ 3127, 3129, 3139. The statute does not expressly fix the degree of diligence required in such a case. When this is so, and there is no settled rule of common law which governs the question, it is safe to take the language of the statute itself as an indication of the legislative intention; for “ the intention of the law-maker constitutes the law.” Stewart v. Kahn, 11 Wall. 493, 504; 3 How. 565; 1 Black, 61; 3 Ohio St. R. 80. Here, the legislature directs that, as long as the vessel seized remains in the custody of the sheriff, “ he must, as far as practicable, secure it against loss or injury; ” and it also directs how this duty may be performed, when it is not done by the sheriff in person, or by his legal deputy. It may be done by a “ suitable person, or persons,” appointed by the sheriff, who may be employed “ to take charge ” of the boat or vessel so seized by the sheriff. Rev. Code, § 3139. Then, after the boat is seized, and the sheriff has exercised his authority to put it in charge of a “ suitable person or persons ” for safe keeping, he has done what the law justifies him in doing. Thus far there is no neglect of duty on his part. It is true that the boat is still in his custody, and he holds it until discharged “ by due course of law.” Rev. Code, § 3129. It is, therefore, his duty to see that the person in charge of the boat also discharges his duty. But, in neither case, does the sheriff assume the responsibility of an insurer. If he did, this would place the boat in a better condition in his custody than it would be in the hands of the owners. This is not to be presumed, as the owners could have withheld the boat from the sheriff’s custody by giving the proper bond. Rev. Code, § 3130. The statute requires, that, if the sheriff himself takes charge of the boat, “ he must, as far as practicable, secure it against loss and injury.” Rev. Code, § 3139. This cannot mean at all events. Then, the sheriff does not hold the custody of the boat as an insurer. Just as the sheriff in person would hold the boat, his keeper would also hold it.- The diligence required of the one would [551] be the diligence required of the other. By the seizure, the boat passes from the custody of the owner to the custody of the sheriff. For certain purposes, the sheriff steps into the shoes of the owner ; and what it was the interest of the owner of the boat to do, to secure it from loss and injury, it became the duty of the sheriff to do for the same purpose. Unless the legislature had declared, for purposes of public policy, that it was necessary for the sheriff to keep the boat seized by him with greater care than a prudent owner would do, it is reasonable to conclude that such diligence would suffice to protect the sheriff and his keeper. I therefore think that, in such a case as this, the sheriff is only required to use such care and diligence about keeping the boat as a person of ordinary discretion and judgment might reasonably be expected to use in reference to his own property, and that, if the boat should be accidentally destroyed by fire, he would not be liable for the loss. Shear. & Redf. Negligence, pp. 609, 610, § 530. This seems to be the result of adjudications in other states of the Union, on questions similar, if not identical.in principle, with the one under discussion in this case. See Browning v. Hanford, 5 Hill (N. Y.), 588; Moore v. Westervelt, 27 N. Y. Rep. 234; Bridges v. Perry, 14 Verm. 262; Conover v. Galewood, 2 A. K. Mar. 566. Under such a seizure, the sheriff does not hold the boat strictly as a bailee ; because there cannot be a bailment without a contract. 2 Kent, 559; 2 Black. Com. 395, 451; Jones on Bailments, 117; Story on Bailments, § 2. He is an officer of the court, and holds the boat in that character. Judge Story classes such officers as “ special, or quasi bailees for hire.” And he states it as the settled law, that “ if the property in, their custody ” is lost or injured, by any negligence, or dishonest execution of the trust, they are liable in damages. But they are not liable, as of course, because there has been a loss by embezzlement or theft. In order to charge them in such cases, the loss must have arisen from the culpable neglect, or fraud, either of themselves, or of the agents or servants employed by and under them. And it seems that the court places such confidence in its officers, that it will require some proof at least of negligence or fraud in them, or their subordinates or servants, before it will throw the burden of proof upon them to exonerate themselves from the charge. The degree of diligence, which officers of court are bound to exert in the custody of property, seems to be such ordinary diligence as belongs to a prudent and honest discharge of their duties, and such as is required of all persons who receive compensation for their services. Story on Bailments, §§ 613, 620, 124-135; also, Burke v. Trevitt, 1 Mason’s R. 96, 101; The Hoop, 4 Rob. R. 145; The Rends552 berg, 6 Rob. R. 142, 157, 159, and cases supra. I have not been able to find any American case that goes beyond the principles thus stated. In the enactment of the statutes out of which the sheriff’s liability springs up in this case, the legislature must be presumed to have been familiar with the principles of law above stated, which governed and limited the duties and liabilities of officers of court in similar cases. In such case, the presumption is, that when like duties are required, only like responsibilities are intended to be imposed. In this view of the law, the second charge asked by the defendants in the court below should have been given. That charge is in these words. [ Vide supra.] The refusal of this charge was error. And for like reasons, the charges given, and excepted to by the defendants below, were incorrect. The judgment of the court below is reversed, and the cause is remanded for a new trial.