State ex rel. Vanderworker v. Brown

Bartol, C. J., delivered tbe opinion of the Court. This is a suit on the official bond of a constable, against him and his sureties. The breach alleged in the narr. is that the officer having in his hands a writ of fieri facias directing him to levy upon the goods of the defendant named in the writ of execution, did seize and carry away the goods of the equitable plaintiff, well knowing that said goods so seized were the property of the relator. The demurrer to the declaration was sustained and judgment entered for defendants; the plaintiff has brought this appeal.. Some objection to tbe narr. has been made by the appellees, on the ground of a supposed variance; but this objection in our opinion is not well founded. The only question presented by the ajipeal is whether an action can be maintained against a constable and his sureties, on his official bond for a trespass committed by him in taking the goods of the equitable plaintiff on an execution issued against the property of another person ? This is a question of considerable interest and importance, and is now for the first time presented directly to — 323 — this Court for decision. So far as our experience goes, it is the first time a suit of this kind has been instituted in Maryland, either upon the official bond of a constable or a sheriff, and therefore when the case was opened by the appellant’s counsel, we expressed some surprise at what appeared to us to he a novel proceeding. The absence of any reported case in Maryland, in which an action has been maintained on the official bond of a sheriff or constable, for a tortious act, such as that alleged in the narr. is strong evidence that according to the general and received opinion of the bench and bar in this State, such an action cannot he maintained. Although there is no express decision to that effect, there are several cases in which this Court has spoken of the remedy for a wrong, such as that here complained of, and has declared that the remedy is by an action of trespass or trover against the officer personally, and against the plaintiff in the execution if he is a party to the trespass. In no instance has it been intimated that a suit for such cause could be maintained upon the official bond, although if such had been supposed to he the law, the Court could scarcely have failed to mention it. In Cromwell vs. Owens, 7 H. & J., 60, it is said “ whenever the goods of a stranger are wantonly taken, or after due notice being given, that they are his property, the party injured, if he chooses not to wait and replevy from the purchaser after sale, may always obtain ample redress in exemplary damages, in an action of trespass or trover, at the hands of a jury—a tribunal that is always found ready to vindicate the rights of the individual against the lawless oppressor. And in cases of mere mistake, without any intention to do wrong, less than the full value of the goods taken will seldom he recovered.” In Chappell vs. Fox, 18 Md., 519, the legal remedy in such case is declared to he, by suit against the officer. In Richardson vs. Hall, 21 Md., 404, the case before the Court was likened to “the case of a sheriff taking the — 324 — goods of one person upon a fieri facias issued against another, for which it is well settled, an action may he maintained by the real owner against the sheriff, and the plaintiff in the execution, if he be privy to the wrong.” These citations indicate pretty clearly what has been understood to be the law in Maryland on this subject. But it is argued by the appellant that in such case an action lies also upon the bond; this depends altogether upon the terms and conditions of the bond. The mandate of the writ directs the officer to seize the goods of the defendant in the execution ;—if under color of the process he seizes the goods of a stranger, it is a tortious act, not done in the execution of his legal duty, but in violation of his duty, for the consequences of which his office does not protect him, and as we have seen trespass lies against him. Is it within the condition of the bond or a breach of the condition for which the sureties are liable ? The condition of the bond is, “ that he shall well and faithfully execute the office of constable.” By this contract, the sureties guarantee the public against official delinquency on the part of the officer. Eor any breach of official duty his bond is responsible; this is the extent of liability assumed by the sureties. ' If he commits a wrong, 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. In Alcock vs. Andrews, 2 Esp., 542, (note,) Lord Kenyon, distinguished between wrongful acts by an officer, done virtute officii, and such as are done colore officii. The former are “ where a man doing an act within the limits of his official authority, exercises that authority improperly, or abuses the discretion placed in him. The latter are where the act committed is of such a nature, that the office gives him no authority to do it; in the doing of that act he is not to be considered as an officer.” The act com — 325 — plained of in this case belongs to the latter class, and for that reason, the officer is held liable, and an action lies against him, not in his official character, but as a naked trespasser; for a trespass of this kind, the sureties on the bond cannot be held responsible; as it was said by the Supreme Court of North Carolina, (in State vs. Brown, 11 Iredell, 144:) “ The sureties are here sued upon an express contract, and their liability is confined to it, and cannot be carried beyond its proper and fair meaning ; the provision in the sheriff’s bond binds the officer affirmatively to the faithful execution of his office—there is no clause to cover an abuse or usurpation of power—no negative words that he will commit no wrong by color of his office, nor do anything not authorized by law.” There the condition of the bond was similar to that here declared on. In Ex parte Reed, 4 Hill, 572, the question was ruled in the same way by the Supreme Court of New York. The Court say, to warrant a recovery “ on the words of the condition, it is incumbent on the relator to show his demand against the sheriff is for some default in a matter transacted by him in virtue of his office, or for the omission of some act which as sheriff, it was his duty to perform.” In that case, a judgment had been recovered against the sheriff, in trespass for wrongfully seizing the relator’s goods under a f. fa., and a motion was made under the statute for leave to prosecute the official bond, and was refused. The decision was made in 1843, Judge Cowen giving the opinion. In 1850, the question arose in “ The People vs. Schuyler, 4 Comstock, 173, and Ex parte Reed was overruled by a divided Court, three Judges dissenting. Upon a careful examination of the case, we think the reasoning in the opinion of the dissenting Judges is more satisfactory than that of the majority. In several of the other States decisions have been made in accordance — 326 — with that of The People vs. Schuyler; these have been referred to in the appellant’s brief, and cited in argument; hut we do not think they are entitled to he considered controlling authorities in Maryland. Many of them are based upon what is considered public policy; considerations, which in our judgment, can have hut little weight, in a case like the present. As said by Judge Pratt, (4 Comstock, 189,) “The liability of the sureties rests in contract, and the obligation thereby created is not to be extended beyond its legitimate scope and meaning. We are not at liberty to speculate upon reasons of policy, where the rights of the parties are fixed by contract.” In State vs. Conover, 4 Dutcher, 28 N. J., 224, the question before us was fully considered, many of the decisions in other States were collected and examined, able opinions were given by the Chief Justice and Judge Haines, and the unanimous judgment of the Court was rendered affirming the views which we'have expressed. In view of what appears to he the well settled common law as it exists in Maryland, and the reasons on which it rests, we think it unnecessary to go into an examination of the various and conflicting decisions elsewhere, cited in argument. With reference to the argument which has been sometimes advanced in favor of holding the official bond answerable in cases of this kind, because it often happens that the officer is a person without means, and, therefore, the injured party is without adequate redress; we have already said that this consideration does not justify us in extending the liability of the sureties beyond the terms of their contract, whatever might he the weight due to the argument if addressed to the Legislature in inducing them to prescribe other conditions for the bond. We may add that to meet a difficulty of this kind, growing out of the absence of liability of the sureties on the official bond, the Legislature has provided an additional remedy by the — 327 — Act of 1870, ch. 84, (Rev. Code, page 737,) whereby a claimant of property wrongfully seized under an execution or a judgment of a justice of the peace, may have a speedy trial of the question of title; with a right of appeal to the Court having jurisdiction. This remedy was open to the relator, and would have secured her ampie redress. (Decided 1st July, 1880.) Judgment affirmed.