Corner v. Mackintosh

48 Md. 374, 1878 Md. LEXIS 112

• Court: Court of Appeals of Maryland
• Decided: March 26, 1878
• Status: Published

Opinion

Alvey, J.,

delivered the opinion of the Court.

This is an action of trespass de bonis asportatis, brought hy the appellee against the appellants; and the cause of action is for the seizing and taking of certain goods and chattels by the sheriff' Of Baltimore County, under process of attachment, issued on a judgment recovered by the present defendants against a certain William Robinson. The case was tried on plea of not guilty, before the Court without the aid of a jury. There is little or no dispute in regard to the evidence; the main and leading question in the case being whether, as matter of law, the defendants are liable for the action of the sheriff in seizing the property of the plaintiff, under the facts and circumstances of the case. At the trial below each party offered prayers to be ruled as the law to govern the Judge in making up his judgment; hut only those offered hy the plaintiff, and one of the ten offered by the defendants, were granted; the other nine of those offered hy the defendants being rejected. Some of the prayers rejected raise the question of the insufficiency of evidence, under the pleadings in the cause, to entitle the plaintiff to recover at all; and others raise questions as to the extent of the right to recover under the pleadings and evidence.

The judgment against Robinson was recovered on the 13th of February, 1860, and two days previously he executed a deed of trust to the present plaintiff for the benefit of releasing creditors, of all his property, real and personal; and the goods and chattels attached, being part of the property thus conveyed, consisted of live stock, gathered crops, and farming implements, found on the farm of the debtor, also part of the property conveyed. The plaintiffs in the judgment supposing the deed of assignment to be defective for want of an affidavit as to its being bona fide, sued out an attachment on their judgment, and caused it to be laid on the farm, and also the goods and chattels found thereon of the description just mentioned. The attachment was issued and the property seized on the 15th of March, 1860. The sheriff found the farm and the property thereon under superintendence and management of a party by the name of Horner; and after making a schedule of the property seized, and having the same appraised, the personal property was left in charge of two men on the farm, whom the sheriff paid for their services. The sheriff made return to the writ as follows: “Attached as-per schedule, and attachment also laid in the hands of H. Horner, garnishee, March 15th, 1860; also laid in the hands of William McIntosh, garnishee, May 20th, 1860. Personal property sold on the 10th day of April, 1860, to the amount of $2,504.11.”

At the time of the seizure by the sheriff, all the personal property mentioned in his schedule, was advertised to be sold by the plaintiff, as trustee under the deed, on the 21st of March, 1860 ; which sale was entirely defeated by the attachment. The plaintiff, on the 19th of March, notified the sheriff of the intended sale, and warned him that he would be held liable for the seizure. And, on the same day, he addressed a communication to the defendants, apprising them of the intended sale, and requested to be informed whether they intended that the sheriff should hold the property under the attachment; and, at the same time, he notified them that they would be proceeded against for taking the property. To this communication the defendants replied, that the plaintiff should exercise his own discretion as to whether he would proceed with his sale or not; and they said that they were not aware that the sheriff had interfered with the sale, hut they left it with the plaintiff to do what he might think proper under the circumstances.

After this, that is, on the 22d of March, 1860, and before the return of the writ, the defendants filed a petition for the sale of the personal property attached, under section 2? of Art. 10 of the Code, alleging that the property had been attached, and that it was perishable, and expensive to keep. An order of sale was accordingly passed on the same day, and the property was sold on the 10th of April, as stated in the sheriff’s return. At this sale, one of the defendants attended, and instructed as to the making it. The present action was brought on the ?th of April, 1860, three days before the day of sale by the sheriff.

Upon the return of the attachment, the plaintiff intervened as claimant of the property, and ultimately succeeded in establishing his right to it, under the deed of trust. Mackintosh vs. Corner, 33 Md., 598.

That the sheriff was a trespasser in seizing the property, we do not understand to be questioned. But it is contended for the defendants, that they are not liable for the trespass alleged, because they in no manner participated in disturbing the plaintiff’s possession of the property; and that there was nothing done by them, subsequent to the seizure by the sheriff, that would make them liable for his proceeding in the premises. And this position is attempted to he maintained upon the proof of the instruction that was given the sheriff at the time the attachment was placed in his hands. According to that proof, the defendants instructed the sheriff to attach the particular property seized by him, but they instructed him at the same time not to disturb the plaintiff’s possession of the property, or that of any agent of his who might be found in possession of it; but that he should attach the property hy schedule, and leave the same in possession of the plaintiff or his agent, and lay the attachment in the hands of the person in possession, and return him as garnishee.

But how this is to relieve the defendants we are unable to perceive. In the first place, the question is, not what the sheriff was privately instructed to do after seizure, hut what he was authorized to do by the command of the process placed in his hands, and what was actually done under that process; it being conceded that he was specially instructed to attach the particular property that, in fact, belonged to the plaintiff. In the case of a party issuing a fieri facias or other execution, and simply placing it in the hands of the sheriff, with direction to make the money of the goods and chattels of the defendant in the execution, and the sheriff proceeds and seizes the property of a stranger for that of the defendant, the plaintiff in the execution giving no instruction in regard to such seizure, and in no manner interfering in the execution of the process, then the plaintiff in the execution will not he held liable for the trespass committed hy the sheriff. This may he regarded as a settled principle, upon the authority of several well considered cases. Wilson vs. Tumman & Fretson, 6 M. & Gr., 236; Woollen vs. Wright, (in Ex. Ch.,) I H. & Colt., 554. But, in the language of the Court in the cases just cited, if the execution plaintiff directs the sheriff to take the goods of another person than the defendant in the execution, such previous direction will undoubtedly make him a trespasser, on the principle that all who procure a trespass to he done are trespassers themselves, and the sheriff would he supposed not to have taken the goods merely under the authority of the writ, hut as the servant of the execution plaintiff.

Here, the sheriff was armed with process, the command of which was, that he should attach of the lands, tenements, goods, chattels and credits of the debtor, found in his bailiwick, to the amount of the debt and costs, and when he should have the same so attached, the same in his custody to he safely kept, so that condemnation thereof might he had. With this process he received from the present defendants specific instruction as to the property upon which it was to be levied. Now, if the attachment or seizure of this property was designed to have any operation at all, it must, in the nature of things, have affected and disturbed the possession of the owner. The whole proceeding was adverse to the claim of the present plaintiff, and was intended to bring into question his right to the property under the deed. The seizure by the sheriff was the assertion of a superior right to that of the present plaintiff, and it naturally enough defeated the intended sale under the deed; as no person would have purchased the property, at its value, while under seizure by attachment ; and, as we have seen, the defendants refused to withdraw the attachment or abandon the seizure. The plaintiff’s possession was not only disturbed by the exercise of control and authority over the property, inconsis-' tent with his free and absolute right of ownership, which would of itself constitute a trespass, (2 Greenl. Ev., sec. 621, and cases there cited; Wintringham vs. Lafoy, 7 Cow., 735,) hut the sheriff actually displaced the plaintiff’s possession, by taking the property into his own custody. And the fact that the sheriff returned both the plaintiff and Horner as garnishees, in no manner altered the case. It is always proper, when a party is found in possession of lands or chattels which are attached, that he should he returned as garnishee: Code, Art. 10, sec. 12; Barney vs. Patterson, 6 H. & J., 201. But this is required in respect to the party’s apparent relation to the property, and in order to give him a day in Court to assert and vindicate any right that he may have, inconsistent with the right of condemnation. The judgment of condemnation, however, in such case, is not against the garnishee, hut of the particular lands or chattels attached ; and a fieri facias goes to the sheriff, commanding him to sell the property thus condemned. 2 Harris’ Ent., 83, 680 ; Davidson’s Lessee vs. Beatty, 3 H. & McH., 615, 616. The only security therefore, in the attachment of specific goods and chattels, is the custody or control which the sheriff may take of them ; and hence it is said that ‘ ‘ the first duty of the attaching officer is to retain possession of the property.” Drake on Attach., secs. 290, 350, 423. By the seizure, the officer becomes vested of a special property in the chattels, and they are thenceforth regarded as in the custody of the law ; (Cromwell vs. Owings, 7 H. & J., 55 ;) and it was only upon this assumption, that the defendants were enabled, upon their application, to have the property sold before the return of the writ, because it was perishable and expensive to keep. In practice, we know it is frequently the case, that the sheriff leaves the goods and chattels in the possession of the party with whom they are found, until condemnation ; but this is optional, depending upon the nature of the property and the character and responsibility of the party in possession. The sheriff, however, has no right to require such party to become bailee of the goods and chattels attached, against his consent ; and in this case, the present plaintiff did refuse to become such bailee.

But it is insisted, that even if the plaintiff be entitled to recover for the original seizure by the sheriff, he is not entitled, under the pleadings in the cause, to recover any damages for the subsequent sale of the property under the order of the Court, inasmuch as the action was brought before the sale was made by the sheriff, though after it was ordered by the Court. In this proposition, however, we do not concur. The sale of the property was but a legal incident of the attachment, and resulted as a consequence of the seizure by the sheriff. ' It was had on the application of the defendants, and they cannot, therefore,. complain of or question its propriety. The authorities are uniform and clear in maintaining the principle, that the natural results of a wrongful act are understood to include all the damage to the plaintiff of which such act was the efficient cause, though in point of time the damage did not occur until some time after the act done. To such an extent is this principle carried, for the purpose of accomplishing justice, and securing to parties full compensation for wrongs suffered, that the proof of actual damages may extend to all facts which occur and grow out of the original injury, even down to the day of the verdict; the exception to this rule excluding only such facts as not only happened since the institution of the action, hut which furnish of themselves sufficient ground for a distinct suit. 2 Greenl. Ev., sec. 268 a; Wilcox vs. Plummer, 4 Pet., 172; Mayne on Damages, 33-35. The right of action accrued upon the attachment of the property by the sheriff, and the subsequent disposition of the property was a fact material in fixing the amount of damages resulting from the original wrong. Richardson vs. Hall, 21 Md., 399, 405. As there has been a total deprivation of the property, the measure of damages in such case as this is the value of the property taken, with interest on the amount to the time of trial. The plaintiff is entitled to recover all the legal damages which he has sustained; and nothing less than the value of the property, with interest on the amount, would he legal or just compensation for the wrong done. Harker vs. Dement, 9 Gill, 7 ; Moore vs. Shultz, 31 Md., 423 ; Wanamaker vs. Bowes, 36 Md., 42. Of course, whatever amount of the proceeds of the sale made of the property that the plaintiff has received, that should he credited as of the time when received by him ; and thus reduce the amount of recovery.

Having stated the principles applicable to the entire case, we can have but little difficulty in disposing of the several prayers ruled upon by the Court below.

(Decided 26th March, 1878.)

As to the first and second prayers offered by the plaintiff, in view of the facts of the case, we can perceive no objection to them, and think the Court committed no error in granting them. But as to the third prayer of the plaintiff, we think there was error in granting it; because counsel fees paid by the plaintiff in defending the property in the attachment suit, are not proper to be allowed as damages in this action. It is true, there are cases to he found in other States in which such an allowance has been sanctioned; hut we are not aware of any case in which such an allowance has been sanctioned by this Court. The plaintiff was not hound to intervene in the attachment case as claimant of the property, though he had the option to do so; (Richardson vs. Hall, 21 Md., 405 ;) and there would seem to be no well founded reason for allowing such an element to enter into the estimate of damages in a case like the present. Indeed, there are decisions directly against it. Holloway vs. Turner, 6 Q. B., 928 ; Young vs. Tustin, 4 Blackf., 277 ; Mayne on Damages, 27, 28 ; Wallis vs. Dilley, 7 Md., 237.

Of the ten prayers offered by the defendants, only one, the eighth, was granted; all the others were refused, and we think correctly. Without examining each prayer separately, it is sufficient to say, that none of those refused can he maintained, consistently with the principles stated in the previous part of this opinion. The judgment of the Court below, however, must be reversed, because of the error in granting the plaintiff’s third prayer.

Judgment reversed, and new trial awarded.