Downs v. Mayor

• Decision Date: 12 January 1910
• Parties: DOWNS v. MAYOR, ETC., OF CITY OF BALTIMORE.
• Court: Maryland Court of Appeals

76 A. 861

111 Md. 674

DOWNS

v. MAYOR, ETC., OF CITY OF BALTIMORE.

Court of Appeals of Maryland.

Jan. 12, 1910.

Appeal from Superior Court of Baltimore City.

Action by the Mayor and City Council of Baltimore against William P. Downs. From a judgment overruling defendant's motion to quash an attachment on original process, defendant appeals. Affirmed.

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, and THOMAS, JJ.

Thos. C. Weeks and Harry B. Wolf, for appellant, cited the following:

Larceny is not a debt, ex contractu, nor a tort, ex delicto, to be remedied by a civil action between the parties, but is a public wrong. Worthington v. State, 58 Md. 409, 42 Am. Rep. 338; Canton Nat. Bank v. American Bonding and Trust Co., 111 Md. 41, 73 Atl. 684.

Attachment is a special statutory remedy in contravention of common law available only in such cases as are expressly provided. Hodge & McClane Law of Attachment, p. 2, note 1. To authorize an attachment, the parties must occupy the relation of debtor and creditor. Hough v. Kugler, 36 Md. 194. A variance between the affidavit for attachment and the voucher is fatal to the writ. Burk v. Tinsley, 80 Md. 98, 30 Atl. 604; Norris v. Graham, 33 Md. 59; Mears v. Anderson, 31 Md. 229.

Edgar Allan Poe, City Sol., and Sylvan Hayes Lanchheimer, for appellees, cited the following:

Wilson v. Wilson, 8 Gill, 192, 50 Am. Dec. 685; Franklin v. Claflin, 49 Md. 38; Morgan v. Stewart, 119 La. 392, 44 South. 138, 143; Orient Mut. Ins. Co. v. Andrews, 66 Md. 371, 374, 7 Atl. 693; Williams v. Jones, 38 Md. 565; Moneyweight Scale Co. v. McCormick, 109 Md. 170, 183, 72 Atl. 537; National Bank v. Fonda, 65 Mich. 533, 535, 536, 537, 32 N. W. 664; Gould v. Baker, 12 Tex. Civ. App. 669, 671, 672, 35 S. W. 708; Lipscomb v. Bank, 66 Kan. 243, 246, 247, 71 Pac. 583; Garrott v. Jaffray, 73 Ky. 419; Railroad v. Peoples, 31 Ohio St. 543; Nevada Co. v. Farnsworth (C. C.) 89 Fed. 164, 165, 166.

Assumpsit lies for money stolen. Beardslee v. Horton, 3 Mich. 560; Spencer v. Towles, 18 Mich. 9; Elwell v. Martin, 32 Vt. 220.

Wherever assumpsit will lie, attachment will lie. Crane v. Lewis, 4 La. Ann. 320, 321; Santa Clara Valley Peat Fuel Co. v. Tuck, 53 Cal. 305; Foote v. Foulke, 55 App. Div. 617, 618, 620, 67 N. Y. Supp. 368; Grevell v. Whiteman, 32 Misc. Rep. 279, 65 N. Y. Supp. 974, 975; Hanley v. Combs, 48 Or. 409, 87 Pac. 143, 144; Morgan Co. v. Stewart, 119 La. 392, 44 South. 138, 143, 144; Hitson v. Hunt, 45 Tex. Civ. App. 360, 101 S. W. 292, 293; U. S. v. Graff, 67 Barb. (N. X.) 304; Meyer v. Brooks, 29 Or. 203, 44 Pac. 281, 54 Am. St. Rep. 790; Earth v. Graf, 101 Wis. 27, 76 N. W. 1100; Railway Co. v. Dana, 1 Gray (Mass.) 83; Howe v. Clancey, 53 Me. 130; Shaw v. Coffin, 58 Me. 254, 4 Am. Rep. 290; May v. Disconto Gesellsehaft, 211 Ill. 310, 71 N. E. 1001; Martin v. Gunnison, 27 Ohio Cir. Ct. R. 113; Cohen v. Lasky, 102 Ga. 846, 30 S. E. 531; Judge v. Curtis, 72 Ark. 132, 78 S. W. 746; Kneeland on Attachment, § 85; Drake on Attachment, § 22; Wade on Attachment, §§ 12, 22; Penn v. Flack, 3 Gill & J. 374.

There is an implied contract to make compensation for money which it has no right to retain. Cent. Transp. Co. v. Pullman Car Co., 139 U. S. 60, 11 Sup. Ct. 478, 35 L. Ed. 55.

The English doctrine that for goods feloniously taken no action lies against the felon before institution of criminal proceedings against him does not obtain in the United States. Boston & Worcester R. Corporation v. Dana, 1 Gray (Mass.) 83, 96-100; Fettingill v. Rideout, 6 N. H. 454, 25 Am. Dec. 473; Gross v. Guthery, 2 Root (Conn.) 90, 1 Am. Dec. 61; Piscataqua Bank v. Turnley, 1 Miles (Pa.) 312; Foster v. Commonwealth, 8 Watts & S. (Pa.) 77; Hepburn's Case, 3 Bland, 114: Allison v. Bank, 6 Rand. (Va.) 223; Story v. Hammond, 4 Ohio, 376; Blassingame v. Glaves, 6 B. Mon. (Ky.) 38.

The civil and criminal prosecutions may, therefore, go on pari passu, or, if the latter is not commenced at all, the failure to seek public justice is no bar to the private remedy. Cooley on Torts (3d Ed.) 152, 153; Plummer v. Webb, 1 Ware, 69, Fed. Cas. No. 11,234; Boardman v. Gore, 15 Mass. 331; Hyatt v. Adams, 16 Mich. 180; Allison v. Bank of Virginia, 6 Rand. (Va.) 204; Ballew v. Alexander, 6 Humph. (Tenn.) 433; Williams v. Dickinson, 28 Fla. 90, 9 South. 847; Augusta v. Powell, 77 Ga. 192, 3 S. E. 757; Parker v. Lanier, 82 Ga. 216, 8 S. E. 57.

PEARCE, J. This appeal is from a judgment of the superior court of Baltimore City overruling a motion to quash an attachment on original process, instituted by the mayor and city council of Baltimore against William F. Downs. The affidavit alleges that said William F. Downs is bona fide indebted unto the said mayor and city council in the sum of $24,680, over and above all discounts, and that the said mayor and city council has good reason to believe: (1) That said Downs has assigned, disposed of, or concealed, or is about to assign, dispose of, or conceal, his property, or some portion thereof, with intent to defraud his creditors. (2) That the said Wm. F. Downs fraudulently contracted the debt or incurred the obligation aforesaid.

The account filed with said affidavit is as follows: "Baltimore. Md., April 3, 1909. William F. Downs is indebted unto the mayor and city council of Baltimore in the sum of $24,680 for money stolen by the said William F. Downs from the said mayor and city council of Baltimore, while the said William F. Downs was a clerk in the office of the register of the mayor and city council of Baltimore, and acting as such in said office, and in the employment of the said mayor and city council of Baltimore, as such, which said $24,680 at the time of such theft as aforesaid by the said William F. Downs was the property of the said mayor and city council of Baltimore, and which said property and money so stolen by the said William F. Downs as alleged, the said William F. Downs has taken away and appropriated to his own use; said sums of money having been stolen on the dates opposite the amounts as follows." The several separate amounts so alleged to have been stolen, and the several dates on which the several amounts are alleged to have been stolen, are then set out; the aggregate amount of said several amounts being alleged to be $24,680, and said aggregate amount being stated in said account, not to be, nor intended to be, taken as a statement of the entire amount so taken and stolen.

The declaration contains three counts for money payable by the defendant to the plaintiff: (1) For money received by the defendant for the use of the plaintiff. (2) For money found to be due from the defendant to the plaintiff on accounts stated between them. (3) "For money stolen by the defendant from the plaintiff," repeating the exact language heretofore transcribed from the affidavit. Certain property was attached, and the defendant moved to quash the writ, assigning the following reasons: (1) Because the court was without jurisdiction in the premises. (2) Because it appeared from the proceedings that the relation of debtor and creditor never existed in respect to the money alleged to have been stolen. (3) Because it appeared from the proceedings that there was no contractual obligation due the plaintiff induced by the fraud of the defendant. (4) For other reasons to be shown at the trial of the motion. The second and third reasons are essentially the same, and each merely amplifies and makes specific the general ground of the first reason. The fourth is the usual general reason alleged, to cover any unforeseen particular objection; but none such has been brought forward. The grounds of objection may be reduced to two, and may be restated thus: (1) That exclusive jurisdiction of all matters growing out of a larceny or embezzlement is under the law of this state vested in the criminal courts. (2) That if this contention be denied, there is still no jurisdiction under the attachment law in the civil courts for want of any contractual relation between the parties in respect to the money alleged to have been stolen. These questions have never arisen in Maryland, and we shall consider them therefore first upon principle, and then in the light of decisions elsewhere under statutes similar to our own.

In order to avoid confusion of mind as to the real question for determination, it must be remembered that at this stage of the case it is wholly immaterial to inquire whether a larceny or embezzlement has in fact been committed, but merely whether that charge, if sustained by proof at the proper time, is a charge of an indebtedness, either express or implied, which under our statute will warrant an attachment. The motion to quash the attachment is strictly analogous in its operation to a demurrer in an ordinary suit, in that it admits for the purpose of the motion all the facts alleged in the affidavit and account, while it challenges the jurisdiction of the court upon such facts. The test of jurisdiction which is thus necessarily suggested is this: If the facts thus alleged would sustain an action of assumpsit in the ordinary form, the attachment should lie; if they would not, the motion to quash should prevail. Or, enlarging the verbal proposition, but not the legal principle involved, if an action of assumpsit could be maintained upon the facts stated, aside from an attachment, why should an attachment, as an original proceeding, be rendered nugatory merely because accompanied by a proceeding in personam, such as would support a judgment, if there were no proceeding in rem? This question is sought to be avoided by the able counsel for the appellant through the contention that under section 261 of article 27 of our Code of Public General Laws a special statutory jurisdiction is conferred upon the criminal courts of the state in all matters of restitution in larceny; "the restoration of the goods, or their value, being predicated on conviction, and being part of the...