State v. Fowler

• Court: Maryland Supreme Court
• Writing for the Court: PEARCE, J.
• Citation: State v. Fowler, 42 A. 201, 88 Md. 601 (Md. 1898)
• Decision Date: 21 December 1898
• Parties: STATE, to Use of WILSON, v. FOWLER et al.

42 A. 201

88 Md. 601

STATE, to Use of WILSON, v. FOWLER et al.

Court of Appeals of Maryland

December 21, 1898

Appeal from circuit court, Anne Arundel county; I. Thomas Jones and James Revell, Judges.

Action by the state, for the use of Samuel T. Wilson, against Joseph O. Fowler and others. Verdict was directed for defendants and plaintiff appeals. Reversed.

Argued before MCSHERRY, C.J., and PAGE, PEARCE, BOYD, FOWLER, and SCHMUCKER, JJ.

James M. Munroe, for appellant. Daniel R. Magruder and Robert Moss for appellees.

PEARCE J.

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 40 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 did well and faithfully execute the said office of sheriff, and did not wrongfully, illegally, and oppressively execute the writ of fieri facias, and issue was joined upon this plea. Without going into the details of the testimony, it is sufficient to say that it fully sustained every averment of fact in the declaration. At the close of the testimony the defendants offered a prayer that there was no evidence legally sufficient to enable the plaintiff to recover under the pleadings and evidence in the case, and the verdict of the jury must be for the defendants, and the court granted the prayer, to which ruling of the court the plaintiff excepted and has brought up this appeal.

The gravamen of this declaration is the wrongful, illegal, and oppressive manner in which the sheriff executed the mandate of the writ of fieri facias, and a question of law as to the liability of the sureties in this action is thus presented which is one of first impression in this court. In view of the complete correspondence in this case of the allegata and probata, it would seem that this question would have been better raised by a demurrer to the declaration than to the evidence, but the defendants preferred, for reasons doubtless satisfactory to them, to rest upon the denial as presented by their plea. We were advised by the argument of counsel that the defense 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 language used in the opinion, there is a marked distinction between that case and the present one. There Chief Judge Bartol said: "The only question presented by the appeal 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;" whereas here the only question is whether an action can be maintained against a sheriff and his sureties on his official bond for wrongful and oppressive conduct in executing his writ according to the mandate thereof upon the property of the same person against whom the execution issued, and in the taking of which no trespass can be committed. The Code prescribes the same condition for the bond of sheriffs and constables, viz. "that he shall well and faithfully execute the office of *** in *** county, in all things appertaining thereto," and there is no other statute explaining or affecting the liability of their sureties. The decision in 54 Md. turned upon the distinction between acts done virtute officii, and those done colore officii, the act complained of in that case being held to belong to the latter class. Upon the soundness of that distinction as there applied courts of high reputation and judges of great distinction have differed, and still differ, widely. In Lammon v. Feusier, 111 U.S. 17, 4 S.Ct. 286, where a conclusion was reached different from that of 54 Md., many of the cases are cited and reviewed. When such eminent judges as Chief Judge Green of New Jersey, Judge Cowen of New York, and Judge Ruffin of North Carolina are found in accord with the view expressed in 54 Md., and Chief Judges Shaw of Massachusetts, Tilghman of Pennsylvania, Bronson of New York, and Thurman of Ohio, with Justice Miller of the supreme court, are found opposed to that view, it is apparent that the question is one of much difficulty. We think, however, that the view expressed by Judge Bartol must be admitted to be in accord with the principles announced in the earlier cases in this state where trespasses by sheriffs have been considered, and to be supported by some strong practical considerations of public policy; and we have, therefore, no disposition to question or weaken its legitimate authority in similar cases. So far as the liability of sureties rests in contract, as expressed in the condition of the obligation, we have, in the recent case of State v. Hill, 88 Md. 111, 41 A. 61, emphasized our continued concurrence in the doctrine that such liability is not to be extended beyond the terms of the obligation. But we do not think the case in 54 Md. can, by any fair process of reasoning, be made to control the case before us. In that case the court quotes with approval from Alcock v. Andrews, 2 Esp. 542, note, the distinction drawn by Lord Kenyon "between wrongful acts by an officer done virtute officii and such as are done colore officii." Lord Kenyon says: "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 complained of is of such a nature that the office gives him no authority to do it. In the doing of that act he is not considered an officer." Within the limits of this extract, thus approved by this court, we think abundant warrant can be found to maintain this action, and this...