Wilsokt, J.
Trespass guare clausum and de bonis asportatis, by Amanda S. Cook, appellee, "against William IT. King and Timothy M. Bradley, appellants.
The case was as follows: King went with one Stacey, a deputy sheriff under Bradley, to the residence of Mrs. Cook, in the city of Chicago, to execute a writ of replevin issued out of the Circuit Court of Cook county, against John D. Kirchoff and his wife, Elizabeth Kirchoff, the property described in the writ consising of a piano, household furniture, etc., being the same property covered by a chattel mortgage, previously executed by the Kirchoffs to one Storey to secure the payment of their promissory notes, amounting in the aggregate to $337.50, which notes had been assigned to King. Mrs. Cook was the mother of Mrs. Kirchoff, and the Kirchoffs were occupying Mrs. Cook’s house jointly with her—the furniture being partly Mrs. Cook’s and partly the Kirchoffs’.
Finding Mrs. Cook and Mr. Kirchoff both absent, they requested Mrs. Kirchoff to point out the property covered by the mortgage and described in the writ, offering to take such goods as she preferred they should take, except the piano. Upon her declining to give them any information, Stacey proceeded to take such articles as were designated by King, and which apparently answered the description of the goods described in the writ. He removed them from the house, turned them over to King, according to the command of his writ, took King’s receipt for the goods, and made the proper indorsement on his writ; and this ended his connection with the case.
It turned out that a portion of the goods seized belonged to Mrs. Cook; but they so closely resembled the goods described in the mortgage as led King to believe they were the goods called for by the writ.
After the delivery of the goods by Stacey to King, the latter took them away and concealed them, refusing to surrender them, or to tell Mrs. Cook or her attorneys where they could be found. She sued out a writ of replevin, and search was made for the goods in various parts of the city, but without avail. Negotiations between the attorneys of the parties ensued, which finally resulted in King’s returning the property to Mrs. Cook upon her paying the «Kirchoff notes, then amounting to about $400. Mrs. Cook shortly after commenced this suit, and recovered a verdict against both King and Bradley for $1,000. The court required the plaintiff to remit $400, which she did, and had a judgment for $600.
The amount of the judgment being much in excess of the plaintiff’s actual damages, obviously included exemplary or punitive damages; and the only question we deem itnecessary to consider is, whether, as against the sheriff, she is entitled to recover anything more than the actual damages she sustained; and this involves the question whether an officer, after the delivery of goods to a plaintiff in replevin, is liable for the subsequent wrongful or malicious acts of the plaintiff, done by him separately, and without the knowledge or approbation of the officer.
The general rule of law in relation to punitive or exemplary damages is well understood, and is to the effect that such dam ■ ages are not allowable unless the act complained of was done in a malicious, wanton or reckless manner. After a careful examination of the testimony, we fail to perceive either of these elements in the conduct of Stacey while executing the writ of replevin. However obnoxious to criticism the conduct of King may be in concealing the property subsequent to its receipt by him from the officer, and in requiring Mrs. Cook to pay the Kirclioff notes as a condition to its ransom, we think the evidence wholly fails to show that Stacey was guilty of any malicious, wanton or other misconduct when executing this writ. The proof shows that his assistants were admonished by him to handle the goods with care, and not to make any unnecessary noise or display, and there is no satisfactory evidence that they acted otherwise. Mrs. Kirclioff, upon being notified of their errand, and respectfully requested to point out the property covered by the mortgage, and upon being informed by King that they would take any articles that she would prefer they should take, except the piano, refused to give them any information, and shut herself up in her room. There is also some testimony to the effect that they were misled by wrong information given them by young Kirchoff, grandson of Mrs. Cook, and an inmate of the house. Under these circumstances they did the best they could in selecting articles that apparently answered the description of those named in the writ. They were removed from the house by Stacey with all reasonable care, and turned over to King. We see nothing in the conduct of the officer while engaged in the execution of his writ that should subject him to exemplary damages. Unless, therefore, the sheriff is liable for the subsequent acts of the plaintiff in replevin, the assessment of exemplary damages was wrong. Is he so liable?
We think that, both upon principle and authority, he is not. In Higby v. Williams, 16 John. 215, it was held that where, in an action of trespass against several defendants who pleaded jointly not guilty, a joint trespass is proved, the plaintiff cannot give in evidence, in aggravation of damages, the distinct and unconnected acts of a part of the defendants. Chief justice Spencer, in delivering the opinion of the Court, says: “There can be no doubt that the court erred in admitting evidence of the unconnected and distinct acts of some of the defendants after a joint trespass was proved, for the purpose of enhancing the damages. The principle has been established that if two or more defendants join in a justification of a trespass by a special plea, which would have been a justification to some of them had they pleaded separately, but which would not justify others of them, the plea is bad as to all. The reason is, that the court cannot sever the justification, and say that one is guilty and the other is not, when they all put themselves upon the same terms. But,” he continues, “ the rule is a very artificial one, and ought never to be extended beyond the very cases to which it has been applied; and it may safely be asserted that it has never been extended to the general issue of not guilty.”
In 2 Hilliard on Torts, 292 (3d Ed.), it is said, “ where an immediate act is.done by the co-operation or the joint act of two or more persons, they are all trespassers, and may be sued jointly or severally; and any one of them is liable for the injury done by all, even to the extent of exemplary damages; provided, however, either that they acted in concert or that the act of the party sought to be charged, ordinarily and naturally produced the acts of the others.” It is not claimed that Stacey acted in concert with King in concealing the goods, nor in any other act relating to them, after he had turned the goods over to King on the replevin writ; nor will it be pretended that the act of Stacey in taking the goods and turning them over to King, “ordinarily and naturally,” produced the subsequent acts of King in concealing the property and holding it as a hostage for the payment by Mrs. Cook of the Kirchoff notes.
But the Supreme Court of Illinois have also passed directly on this question. In Becker v. Dupree, 75 Ill.
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Wilsokt, J.
Trespass guare clausum and de bonis asportatis, by Amanda S. Cook, appellee, "against William IT. King and Timothy M. Bradley, appellants.
The case was as follows: King went with one Stacey, a deputy sheriff under Bradley, to the residence of Mrs. Cook, in the city of Chicago, to execute a writ of replevin issued out of the Circuit Court of Cook county, against John D. Kirchoff and his wife, Elizabeth Kirchoff, the property described in the writ consising of a piano, household furniture, etc., being the same property covered by a chattel mortgage, previously executed by the Kirchoffs to one Storey to secure the payment of their promissory notes, amounting in the aggregate to $337.50, which notes had been assigned to King. Mrs. Cook was the mother of Mrs. Kirchoff, and the Kirchoffs were occupying Mrs. Cook’s house jointly with her—the furniture being partly Mrs. Cook’s and partly the Kirchoffs’.
Finding Mrs. Cook and Mr. Kirchoff both absent, they requested Mrs. Kirchoff to point out the property covered by the mortgage and described in the writ, offering to take such goods as she preferred they should take, except the piano. Upon her declining to give them any information, Stacey proceeded to take such articles as were designated by King, and which apparently answered the description of the goods described in the writ. He removed them from the house, turned them over to King, according to the command of his writ, took King’s receipt for the goods, and made the proper indorsement on his writ; and this ended his connection with the case.
It turned out that a portion of the goods seized belonged to Mrs. Cook; but they so closely resembled the goods described in the mortgage as led King to believe they were the goods called for by the writ.
After the delivery of the goods by Stacey to King, the latter took them away and concealed them, refusing to surrender them, or to tell Mrs. Cook or her attorneys where they could be found. She sued out a writ of replevin, and search was made for the goods in various parts of the city, but without avail. Negotiations between the attorneys of the parties ensued, which finally resulted in King’s returning the property to Mrs. Cook upon her paying the «Kirchoff notes, then amounting to about $400. Mrs. Cook shortly after commenced this suit, and recovered a verdict against both King and Bradley for $1,000. The court required the plaintiff to remit $400, which she did, and had a judgment for $600.
The amount of the judgment being much in excess of the plaintiff’s actual damages, obviously included exemplary or punitive damages; and the only question we deem itnecessary to consider is, whether, as against the sheriff, she is entitled to recover anything more than the actual damages she sustained; and this involves the question whether an officer, after the delivery of goods to a plaintiff in replevin, is liable for the subsequent wrongful or malicious acts of the plaintiff, done by him separately, and without the knowledge or approbation of the officer.
The general rule of law in relation to punitive or exemplary damages is well understood, and is to the effect that such dam ■ ages are not allowable unless the act complained of was done in a malicious, wanton or reckless manner. After a careful examination of the testimony, we fail to perceive either of these elements in the conduct of Stacey while executing the writ of replevin. However obnoxious to criticism the conduct of King may be in concealing the property subsequent to its receipt by him from the officer, and in requiring Mrs. Cook to pay the Kirclioff notes as a condition to its ransom, we think the evidence wholly fails to show that Stacey was guilty of any malicious, wanton or other misconduct when executing this writ. The proof shows that his assistants were admonished by him to handle the goods with care, and not to make any unnecessary noise or display, and there is no satisfactory evidence that they acted otherwise. Mrs. Kirclioff, upon being notified of their errand, and respectfully requested to point out the property covered by the mortgage, and upon being informed by King that they would take any articles that she would prefer they should take, except the piano, refused to give them any information, and shut herself up in her room. There is also some testimony to the effect that they were misled by wrong information given them by young Kirchoff, grandson of Mrs. Cook, and an inmate of the house. Under these circumstances they did the best they could in selecting articles that apparently answered the description of those named in the writ. They were removed from the house by Stacey with all reasonable care, and turned over to King. We see nothing in the conduct of the officer while engaged in the execution of his writ that should subject him to exemplary damages. Unless, therefore, the sheriff is liable for the subsequent acts of the plaintiff in replevin, the assessment of exemplary damages was wrong. Is he so liable?
We think that, both upon principle and authority, he is not. In Higby v. Williams, 16 John. 215, it was held that where, in an action of trespass against several defendants who pleaded jointly not guilty, a joint trespass is proved, the plaintiff cannot give in evidence, in aggravation of damages, the distinct and unconnected acts of a part of the defendants. Chief justice Spencer, in delivering the opinion of the Court, says: “There can be no doubt that the court erred in admitting evidence of the unconnected and distinct acts of some of the defendants after a joint trespass was proved, for the purpose of enhancing the damages. The principle has been established that if two or more defendants join in a justification of a trespass by a special plea, which would have been a justification to some of them had they pleaded separately, but which would not justify others of them, the plea is bad as to all. The reason is, that the court cannot sever the justification, and say that one is guilty and the other is not, when they all put themselves upon the same terms. But,” he continues, “ the rule is a very artificial one, and ought never to be extended beyond the very cases to which it has been applied; and it may safely be asserted that it has never been extended to the general issue of not guilty.”
In 2 Hilliard on Torts, 292 (3d Ed.), it is said, “ where an immediate act is.done by the co-operation or the joint act of two or more persons, they are all trespassers, and may be sued jointly or severally; and any one of them is liable for the injury done by all, even to the extent of exemplary damages; provided, however, either that they acted in concert or that the act of the party sought to be charged, ordinarily and naturally produced the acts of the others.” It is not claimed that Stacey acted in concert with King in concealing the goods, nor in any other act relating to them, after he had turned the goods over to King on the replevin writ; nor will it be pretended that the act of Stacey in taking the goods and turning them over to King, “ordinarily and naturally,” produced the subsequent acts of King in concealing the property and holding it as a hostage for the payment by Mrs. Cook of the Kirchoff notes.
But the Supreme Court of Illinois have also passed directly on this question. In Becker v. Dupree, 75 Ill. 167, it is held that to justify exemplary damages for a trespass to property, it must be shown that the defendant was actuated by malice or a reckless disregard of the plaintiff’s rights; and when two are sued, and one of them is not chargeable with malice or recklessness, exemplary damages cannot be recovered against both. See, also, Beveridge v. Welch, 7 Wis. 465.
The rule may therefore be regarded as settled, that where two are sued in an action of trespass, and one of them is not chargeable with malice, wantonness or oppression, punitive or exemplary damages cannot be recovered against both, and the fact that they have joined in a plea of not guilty does not change the rule. Trespasses are joint and several, and if a plaintiff desires to recover exemplary damages, he should bring his suit against the person chargeable with that class of damages.
This rule applies with special force in the case of officers engaged in serving process. A sheriff is commanded by the writ of replevin to deliver the goods to the plaintiff, and he has no alternative but to obey. If^ having obeyed, he is liable to be punished for the subsequent wrongful or malicious separate acts of the plaintiff, done without his knowledge, and wholly beyond his control, his office would certainly be a very dangerous one. True, he is entitled to an indemnifying bond, in a penal sum double the value of the property replevied, but bonds may become worthless, or the, subsequent conduct of the plaintiff may be so gross as to justify damages to a greater amount than the penalty of the bond.
If, as I have endeavored to show, the sheriff is not liable for ■the acts of King done after the property was turned over to him, and if Stacey in executing the writ was guilty of no conduct rendering him amenable to exemplary damages, as we think he was not, it follows that the plaintiff’s third instruction was erroneous. It is as follows:
“ If the jury believe, from the evidence, that a trespass has been committed in this case upon the goods and chattels of plaintiff by the defendant King, and that E. Stacey, at that time a deputy sheriff, was present and assisted in such trespass in his official capacity, then the defendant Bradley is equally liable with the defendant King, even to the extent of exemplary damages.”
This instruction ignores the essential ingredient that authorizes exemplary damages, namely: that the trespass must be committed in a wanton, malicious or reckless manner. We are of opinion that the judgment of the court below should be reversed and the cause remanded for a new trial.
Judgment reversed.
McAllister, J.,
having heard this case in the court below, took no part in the decision.