Findlay v. McAllister/Opinion of the Court

The facts stated in the petition are admitted by the demurrer, and, for the present consideration of the case, must be taken as true. The statutes of Missouri, which were in force when the bonds mentioned in the petition were issued, and which still remain in force, provide as follows: There shall be a collector of revenue for every county, who shall give bond conditioned that he will faithfully and punctually collect and pay over all state, county, and other revenue, for the two years next ensuing the first day of March thereafter. After the tax-book for the year has been corrected, and the amount of the county tax stated therein, the county court shall cause the same to be delivered to the collector, and he shall be charged with the whole amount of the tax-book so delivered to him. The collector shall diligently endeavor, and use all lawful means, to collect the taxes which he is required to collect in his county. After the first day of October he shall have power to seize and sell the goods and chattels of any person liable for taxes in the same manner as goods and chattels are or may be required to be seized and sold under executions issued in judgments at law; and no property shall be exempt from seizure and sale for taxes due on lands and personal property. The collector, having made settlement according to law, of the revenue collected by him, shall pay the amount found due into the county treasury. When a demand against a county is presented to the county court, the court shall ascertain the amount due, and order it to be paid out of the particular fund (designating it) applicable to the payment of such demand, and order their clerk to issue a warrant therefor on the treasurer of the county, which shall designate the particular fund out of which the same is to be paid. The treasurer of the county is required to make an entry in a book, to be kept by him, of all warrants for money lawfully drawn by the county court presented to him for payment; and all warrants so presented shall be paid out of the funds mentioned in such warrants, and in the order in which they shall be presented for payment. See sections 5370, 5394, 6733, 6754, 6774, 6821, 6822, Rev. St. Mo. 1879.

The question presented by the demurrer to the petition is not one of the measure of damages. If the plaintiff has sustained any substantial injury by reason of the wrongful acts of the defendants set out in the petition, for which he is entitled to his action against them, the demurrer to the petition should have been overruled. It is evident from the provisions of the statutes of Missouri, whose substance has been given, that the money received by the collector of Scotland county in payment of the special tax ordered by the county court to be collected for the payment of the judgment of the plaintiff and other judgment creditors, would, when collected, constitute a separate fund in the county treasury applicable to this purpose. If the special tax had been collected, the plaintiff would have had such an interest therein that a court of equity would, at his instance, enjoin its diversion to any purpose save that for which it had been levied and collected, and compel its payment to the satisfaction of the judgment of the plaintiff. Meriwether v. Garrett, 102 U.S. 472, 514, 515; Attorney General v. Dublin, 1 Bligh, (N. S.) 312. And see Davies v. Corbin, 112 U.S. 36; S.C.. ante, 4. The use of the money by the county, except for the payment of the judgments, which the writ of mandamus had been issued to enforce, would have been a clear contempt of the orders and process of the circuit court, as well a violation of the law of the state.

The writ of mandamus under which the collector, according to the averments of the petition, was proceeding to collect the money to pay the judgment of the plaintiff, was a substitute for the writ of fieri facias, and was the only remedy by which the plaintiff could enforce satisfaction. He had, therefore, as clear an interest in the money to be raised by the special tax for the payment of his judgment as he would have had in the money to be collected by the sheriff on execution if his judgment had been against an individual. It would seem fairly to follow that he had the same rights in the one case as in the other, against those who, to prevent the satisfaction of his judgment, unlawfully interfered with the officer in the discharge of his duties.

It is plain that the injury of which the plaintiff complains is not one common to himself and the public at large, as it would have been had the defendants interfered to prevent the collection of the general taxes of the county The alleged unlawful acts of the defendants could injure only the plaintiff, and the other judgment creditors of Scotland county, for whose benefit the special tax was levied. If there is any cause of action against the defendants, it belongs to the plaintiff and other judgment creditors individually, and the public has no share in it. The objection that the plaintiff is only injured in common with all the other members of the body politic, and has no separate and individual cause of action, cannot be successfully urged. The right of a judgment creditor to proceed by action against those who rescue the person of his debtor arrested on mesne or final process, or interfere with the goods of his debtor so as to prevent a levy or sale by the sheriff to satisfy his judgment, is well recognized at common law. Thus, in Smith v. Tonstall, Carth. 3, 4, adjudged on demurrer in the king's bench and affirmed in the house of lords, A., a judgment creditor, sued B. for procuring J. S., the judgment debtor, to confess a judgment in favor of one J. N., to whom he did not owe anything, and J. N. sued out execution on this feigned judgment, by virtue of which he seized all the goods and chattels of J. S., which he esloined to places unknown and converted to his own use, by reason whereof the plaintiff lost his debt. Held, that the action lay.

In Comyns' Digest, under the head of 'Action on the Case for Malfeasance,' A 5, it is stated that an action will lie for rescue of a person arrested upon mesne or judicial process, citing May v. Proby, 2 Cro. 419; Hodges v. Marks, Id. 486; Mynn v. Coughton, Cro. Car. 109; or of goods taken in execution, citing Fitzherbert's Natura Brevium, 101, 102, Reg. 117. And the action lies by the party to the suit in which the arrest was, citing Hodges v. Marks, 2 Cro. 486; Mynn v. Coughton, Cro. Car. 109; 2 Rolle, Abr. 556, pl. 14, 15. Under the head of 'Rescous,' D 2, the same author says: 'So, if a person arrested upon mesne process be rescued, an action upon the case lies against the rescuers by the plaintiff in the suit, for he has the loss and no remedy against the sheriff,' referring to cases above cited, and also to Kent v. Elwis, 2 Cro. 242; May v. Proby, 3 Bulst. 200; Congham's Case, Hut. 98.

In 2 Rolle, Abr. 556, pl. 14, 15, it is said: 'If a sergeant of London or bailiff of the counter take a man on a capias in process at my suit, and J. S. rescues him out of his possession, I may have a general writ of trespass against him, because the sergeant is, for this purpose, my servant as well as the king's, and because the taking out of the sergeant's possession, he being my servant, is a taking out of mine. Trin. 15, Jac. I., Wheatley v. Stone, adjudged on a writ of error at Sergeant's Inn. But I may have action in the case as well. Trin. Jac. I., Speere v. Stone, affirmed same time; S.C.. Hobart, 180, ''sub nom. Wheatley v. Stone''.'

So in Mynn v. Coughton, Cro. Car. 109, cited in Bac. Abr. 'Execution,' O, it was held that, if a defendant be rescued after being taken on a capias ad satisfaciendum, the plaintiff may have an action for the misfeasance against the rescuers; for he is the party who hath the loss, and to whom the injury is done, and he ought not to be compelled to sue the sheriff, who may be dead, and if he recover, the rescuers may plead it if sued by the sheriff, so that there is no danger of being double charged. 3 to 7. S.C.. Hut. 98, ''sub nom. Congham's Case''.

In May v. Sheriff of Middlesex, Cro. Jac. 419, which was an action on the case for escape on mesne process, it was held that rescue may be pleaded in bar, but not for escape on final process. On mesne process, the sheriff was not bound to take posse comitatus, and on rescues returned by sheriff on mesne process, process may be awarded against the rescuers, and an action on the case lies against them. S.C.. 3 Bulst. 198-201, where a full argument by Coke and Doddridge is reported. The latter refers to Fitz. N. B. 102, to show that the party may sue rescuers.

Hodges v. Marks, Cro. Jac. 485, was an action on the case for rescuing plaintiff's debtor out of sheriff's possession after arrest on mesne process, whereby the debtor escaped and went to places unknown. Held good, for the loss is the plaintiff's, as he cannot sue the sheriff; and therefore it is reason that he should have action against those who did the injury to him whereby he lost his process and his means to recover his debt. Kent v. Elwis, Cro. Jac. 241. See, also, May v. Proby, 3 Bulst. 200; Bonham Strangewaie's Case, 5 Mod. 217; Boothman v. Earl of Surry, 2 Term R. 5; Bonafous v. Walker, Id. 126.

In Bentley v. Donnelly, 8 Term R. 127, which was an action by plaintiff in primer action against rescuers of defendant after arrest on mesne process, the action was sustained.

These principles have been recognized by courts of high authority in this country. In Yates v. Joyce, 11 Johns. 136, Yates, the assignee of a judgment against John Joyce, which was a lien on the property of the latter, was about to take out execution and seize a certain lot of land, and the defendant, G. Joyce, knowing this, pulled down and carried away certain buildings from off the land, whereby Yates was deprived of the benefit of his judgment. It was held that Yates might maintain an action on the case against G. Joyce for fraudulently removing the property of John Joyce and converting it to his own use, with intent to defeat the Judgment of Yates. In giving judgment on a demurrer to the declaration, the court said: 'It is obvious, from the statement of the plaintiff's case in the declaration, the truth of which is admitted by the demurrer, that he has sustained damage by the act of the defendant which, he alleges, was done fraudulently and with intent to injure him. It is the pride of the common law that, whenever it recognizes or creates a private right, it gives a remedy for the willful violation of it. * *  * It is a sound principle, that where the fraudulent misconduct of a party occasions injury to the private rights of another, he shall be responsible in damages for the same, and such is the case presented by the pleadings in this cause.' Penrod v. Mitchell, 8 Serg. & R. 522, was an action on the case in the nature of a writ of conspiracy for fraudulently withdrawing the goods of the defendant, in an execution, from the reach of the plaintiff. It was not questioned that the action would lie. The court held that the measure of damages was the value of the goods thus withdrawn, and not the amount of the judgment on which the execution was issued. In Mott v. Danforth, 6 Watts, 304, it was held that a creditor, without judgment or execution, and even before his debt was due, might sue parties at law who conspire to defeat his right of collection by fraudulently concealing and converting the debtor's goods. See, also, to the same effect, Kelsey v. Murphy, 26 Pa. St. 78. And see Meredith v. Johns, 1 Hen. & M. 584. The three cases last cited extend the rule further than the exigency of the present case requires, and further than this court has been disposed to go. These authorities establish the right of a judgment creditor to his action against rescuers of the person or goods of the debtor, seized by the sheriff to satisfy the judgment, or against one who prevents the seizure of the debtor's goods on execution; and the principle on which they rest is directly in the face of the contention of the defendants in error, that the plaintiff has no legal interest in the taxes to be collected to pay his judgment, and has sustained no legal damages by the alleged acts of the defendants. We think they support the action in the present case.

Of the authorities cited by the counsel for the defendant in error in support of the demurrer, the principal case is Adler v. Fenton, 24 How. 408, where it was held that an action would not lie by a creditor, whose debt was not yet due, against his debtors and two others for a conspiracy carried into effect to enable the debtors fraudulently to dispose of their property, so as to hinder and defeat the creditor in the collection of his debt. Mr. Justice CAMPBELL, who delivered the opinion, put the decision of the court on the ground that to sustain the action it must be shown not only that there was a conspiracy, but that there were tortious acts in furtherance of it and consequent damage; that Adler & Schiff, the judgment debtors, were the lawful owners of the property, and had the legal right to use and enjoy or sell it at their pleasure, and the plaintiffs, being general creditors, had no interest in or lien upon it. There was, therefore, no wrong of which the plaintiffs could complain.

In the other cases cited by the defendants, the plaintiff was merely a general creditor, and had no judgment, attachment, or lien, the enforcement of which was obstructed by the defendant, or the cases were otherwise inapplicable to the question in hand. In the present case there was a conspiracy, tortious acts in furtherance of it, and consequent damage to the plaintiff. The property seized by the collector was in the custody of the law. The taxpayers, for whose unpaid taxes it had been seized, had no longer any right to its possession or use, and could not sell or otherwise dispose of it. It was devoted by the law to be sold to raise a fund to pay the plaintiff's judgment. The plaintiff had, therefore, an interest, which the law gave him, in the property and its sale, and suffered a direct damage from the alleged acts of the defendants by which a sale was prevented. The plaintiff, according to the averments of his petition, had recovered his judgment against the county; and he had obtained his mandamus to the county court directing it to levy and cause to be collected a special tax to pay the judgment. The collector of the county, in obedience to the orders of the county court, which were themselves in obedience to the mandamus of the circuit court, was proceeding to collect the tax, and had levied on property to that end, and was about to sell it when the threats and hostile demonstrations of the defendants defeated the sale, and the petition averred the defendants continued to overawe and intimidate the tax-payers of the county, so that they did not pay the tax, and the collector had not been able, by reason thereof, to collect the tax.

The plaintiff cannot sue the collector; for he has done his duty, and no suit lies against him. Unless the plaintiff has a cause of action against the defendants, he is without remedy. To hold that the facts of this case do not give a cause of action against them would be to decide that a citizen might be subjected to a willful and malicious injury at the hands of private persons without redress; that an organized band of conspirators could, without subjecting themselves to any liability, fraudulently and maliciously obstruct and defeat the process of the courts, issued for the satisfaction of the judgment of a private suitor, and thus render the judgment nugatory and worthless. Such a conclusion would be contrary to the principles of the common law and of right and justice.

It is no answer to the case made by the petition to say, as the defendant, by his counsel, does, that the judgment of the plaintiff is still in force and bearing interest, and the liability of the county still remains undisturbed. What is a judgment worth that cannot be enforced? The gravamen of the plaintiff's complaint is that the defendants have obstructed, and continue to obstruct, the collection of his judgment, and he avers that he has been damaged thereby to the amount of his judgment and interest; in other words, that by reason of the unlawful and malicious conduct of the defendants, his judgment has been rendered worthless. To reply to this that the judgment still remains in force on the records of the court is an inadequate answer to the plaintiff's cause of action.

It follows from the views we have expressed that the circuit court erred in sustaining the demurrer to the petition. Its judgment must therefore be reversed, and the cause remanded for further proceedings in conformity with this opinion; and it is so ordered.

MILLER and FIELD, JJ., dissented.