Whitney v. Jenkinson

By the (Jowrt, Crawford, J. The defendant in error, as sheriff of the county of Fond du Lac, by virtue of a writ of replevin, issued at the suit of Charles Tompkins against the present plaintiff in erroi*, seized and took from the possesion of the plaintiff in error, two horses, a wagon and a set of double harness ; and having received from said Tompkins, abond executed by him and two sureties, the defendant in error as such sheriff, delivered the property to the said Tompkins. The defendant named-in the writ of replevin, instituted the present action against the sheriff, Jenkinson, and upon the trial thereof in the Circuit Court, gave in evidence the writ of replevin, by virtue of which the property was taken from him, and the return of the sheriff endorsed thereon, together with the re-plevin bond given by Tompkins and his sureties, and an affidavit of the sufficiency or responsibility of the sureties. In this affidavit the sureties, each for himself, deposed that he was then “ worth the amount of seven hundred dollars, being the penalty named 1n said bond, over and above all debts,” and the jurat attached shows that the affidavit was subscribed and sworn to on the 14th day of November, 1853. It appeared from another endorsement on the bond? — 409 — that on the 26th day of November, 1853, Kirkland Grillett, one of the sureties, again made oath that he was then worth the “ amount of seven hundred dollars, being the penalty named in said bond, over and above all debts and exemptions,” but the other surety, George Williams, did not, it seems, join in the second justification, nor was Gillett’s second affidavit offered in evidence. The pla|atiffs in the court below then examined two witnesses as to the value of the property, and from the testimony of one of the witnesses, it appeared that a day or two after the property was taken on the writ, Tompkins, the plaintiff in the writ, had the property in his possession. The plaintiff rested his case upon the evidence thus submitted, and the Circuit Court, on motion of the defendant, non-suited the plaintiff, and entered a judgment against him for the costs of the suit. The plaintiff therefore prosecuted the present writ of error. The eighth section of chapter one hundred and nineteen of the Revised Statutes, requires the sheriff to take from the plaintiff in an action of replevin, a bond with sufficient sureties, who shall swear that they are each worth the penalty of the bond, over and above all debts, and as well by the mandate of the writ as by the terms of section nine of the above mentioned chapter, the sheriff is required to deliver possession of the property to the plaintiff only upon the receipt of the bond required by law. By an act approved April 2, 1853, section 8 of chapter one hundred and nineteen was so amended as to require that the sureties in a replevin bond shall each swear that he is worth an amount over and above all debts and exemptions, which sums so severally sworn to, would — 410 — amount to the penalty of the bond. At the time of the service of the writ of replevin, the latter kind 0£ j xxstijSCati0n by the sureties, was that required by antj the affidavit sworn to by the sureties on the 14th day of November, 1853, and which was given in evidence, was not a compliance with the law, because that affidavit might be perfectly, true, and yet the sureties might not be worth, either together or separately, one dollar over and above the exemptions granted by law. Nor would the second affidavit, sworn to by Grillett, even if it had been propérly in evidence in the case, have shown a compliance with the law, because it was the justification of but one surety, while the law requires that the sureties shall severally justify. The act of April 2, 1853, prescribes a mode in which the sureties shall show their ability to satisfy the condition of their bond, which, in our view, is altogether different from, and inconsistent with the eighth section of chajiter one hundred and nineteen. It requires a more complete responsibility, and thereby more effectually affords a protection to a defendant in rejfievin. This was evidently the object of the amendatory law, and we think it had the effect of changing the eighth section above-referred to so far as relates to the justification of the sureties over and above all exemptions as well as debts. The defendant in this suit was not justified or authorized in law, as sheriff, to deliver the property taken by him, in the writ of replevin, to the plaintiff in that writ, and by delivering the property, he rendered himself liable to an action. In the case of Ilsley vs. Nichols, 12 Pick. 210. Chief Justice Shaw very correctly expounds the law thus : “An officer, — 411 — having a valid writ, if he does not pursue the authority given to him by his writ, and the rules of law in the execution of his duty under it, is a trespasser in the same manner as if he had no writ; as if he takes goods not belonging to the debtor, or goods exempted by law from attachment, trespass lies. This proceeds upon the ground that the writ affords him a definite and limited authority only, regulated by law, and the legal justification of his acts is co-extensive with his legal authority, and he has no protection when acting beyond the scope of that authority. The authority is given upon the restriction and condition, that it shall not be abused or exceeded or colorably used to effect an unlawful purpose. To accomplish this, the rule is well established that where an authority given by law is exceeded, the party loses the benefit of his justification, and the law holds him a trespasser ah miiio, although to a certain extent he'followed the authority given him.” The case of Morse vs. Hodson and others, 5 Mass. 314, was an action of debt on a replevin bond, brought by the obligee, who was a deputy sheriff, against the obligors. The defendants after oyer of the conditions of the bond, insisted by plea that the conditions were contrary to the directions of the writ. Chief Justice Parsons, in giving the opinion of the court, after referring to the conditions of the bond as directed by the statute of Massachusetts, says, “ Without a bond of this form,The officer may be sued as a trespasser for taking the goods from the defendant in replevin, if he choose to consider him in that light, because the ■ injunction of the writ is on a condition not performed by the plaintiff in replevin.” The same principle — 412 — may found acted upon, in Morris vs. Van Voost, Wend. 283. There is nothing to be discovered- by us, in the cage of Gibbs and others vs. Bull, 18 John. 435, to which we have been referred, that is in any way applicable in the present case. The questions there arose upon the sufficiency of the declaration, which was for taking insufficient pledges under the replevin law of New York, and the want of certain averments to show a violation of the requirements of the statute, was very properly deemed fatal. The position taken by the counsel for the defendant in error, that where a public officer has acted in good faith, though erroneously or irregularly, no action can be maintained, unless the party complaining has suffered some particular injury from the misfeasance of the officer, is quite correct, but in a case like the present, the taking of property from the possession of another, and delivering it into the possession of a third person without authority of law, must necessarily imply some injury or damage to the person deprived of the possession. It is a wrong for which no action can be maintained by any other party than he whose possession has been invaded, so that the case of Butler vs. Kent and others, 19 John. 223, is not inconsistent with the right of the plaintiff in the present case to recover. Where the property of a defendant in replevin has been taken from his possession by the officer, and delivered to the plaintiff without authority of law, he may immediately sue the officer who took and delivered the property, or he may elect to abide the result of a suit in replevin, and if he prevail, take his remedy against the sureties in the replevin bond, If the — 413 — improper conduct of the officer gives a complete right of action to the defendant in the writ, the latter may . •, at once pursue it. From the evidence contained in the hill of tions, and the conclusions of law arising from that evidence, we believe^the court below erred in non-suiting the plaintiff. The judgment is therefore reversed, and a venire faoiae denovo awarded.