South v. Maryland

THIS case came up by writ of error from the circuit court of the United States for the District of Maryland, having been tried in that court by the late Judge Glenn, district judge.

It was an action brought in the name of the State of Maryland by Pottle upon a sheriffs' bond given by South with the other plaintiffs in error as sureties. Under the instructions of the court below, the verdict and judgment were for the plaintiff. Being brought to this court, by writ of error, it was argued at a former term, and was ordered to be reargued and the following questions suggested for discussion:--

1. Whether or not, the declaration contains a cause of action entitling the plaintiff (Pottle) to recover against the sheriff and his sureties within the condition of the official bond, according to the laws of the State of Maryland?

2. Whether or not, the sheriff, as conservator of the public peace, is liable to a civil action for an injury to the person or property of an individual, from a riotous assembly or mob, according to any law of the State of Maryland, if it should appear said sheriff unreasonably omitted or neglected to exert his authority to suppress it?

3. Whether or not the sheriff, as conservator of the public peace, is liable to the plaintiff in an execution, attending personally upon the levy or sale under it, for an injury to his person or property from a riotous assembly or mob, according to any law of the State of Maryland, if it should appear that said sheriff unreasonably omitted or neglected to exert his authority to suppress it?

4. Whether or not, on the case last stated, the sheriff would be liable to the plaintiff in the execution, if he desisted in good faith from the exertion of his authority at the instance and request of said plaintiff, while in the hands of the mob, from an apprehension of greater bodily injury if an effort should be made to suppress it?

It was again argued at this term by Mr. Nelson, for the plaintiffs in error, and by Mr. Dobbin and Mr. Johnson, for the defendant.

As the case turned upon the sufficiency of the declaration, which sets out the case, it is thought propoer to insert it, viz: Narr.

UNITED STATES OF AMERICA,

District of Maryland, sct.

Daniel South, John W. Stouffer, Jacob Fierey, Daniel Middlekauff, senior, and John A. K. Brewer, late of said district, citizens of the State of Maryland, were summoned to answer unto the State of Maryland, of a plea that they render unto the said State the sum of twenty-six thousand six hundred and sixty-six dollars and sixty-six and two third cents, which to the said State they owe, and from the said State unjustly detain: And whereupon the said State, by Dobbin and Talbott, its attorneys, complains that whereas the said defendants, on the seventeenth day of December, in the year eighteen hundred and forty-nine, at the district aforesaid, by their certain writing obligatory, sealed with their seals, and to the court now here shown, whose date is the day and year aforesaid, acknowledged themselves to be held and firmly bound to the said plaintiff in the just and full sum of twenty-six thousand six hundred and sixty-six dollars and sixty-six and two third cents, to be paid to the said plaintiff whenever afterwards they, the said defendants, should be thereto required, which said writing was and is subject to a certain condition thereunder written, to wit: That if the said Daniel South, as sheriff of Washington County, did and should well and faithfully execute that same office in all things appertaining thereto, and should also render to the several officers within the said State a just and true account of all fees placed in his hands for collection within the times limited by law, and should also well and truly pay all sums of money received by him, and also collect and pay all public dues, fines, and forfeitures, which are due or belonging to the State, and should also well and faithfully execute and return all writs, process, and warrants, to him directed and delivered, and should also pay and deliver to the person or persons entitled to receive the same all sum or sums of money, tobacco, goods, chattels, or property by him levied, seized, or taken, agreeably to the directions of the writ, process, or warrant under which the same should be levied and seized; and should also detain and keep in his custody all and every person and persons committed to his custody, or by him taken in execution, or who should be committed for the want of bail, without suffering them or any of them to escape or depart from his custody; and should also pay and satisfy all judgments which should or might be rendered against him as sheriff, and should also well and truly execute and perform the several duties required of and imposed upon him by the laws of said State, then the said obligation was to be void and of none effect, otherwise to remain in full force and virtue in law.

And the said plaintiff further saith, that the said Daniel South, at the time of making the writing obligatory aforesaid mentioned, and long before and thereafter, and at the time of, and after the committing the wrongs hereinafter complained of, was sheriff of Washington county, in the State aforesaid, duly elected, commissioned, and qualified, and by the duty of his office of sheriff aforesaid, and according to the tenor and effect of the condition of the writing obligatory aforesaid, ought to have preserved and maintained the peace of the State of Maryland, in the county of Washington aforesaid.

And the said plaintiff further saith, that a certain Jonathan W. Pottle, a citizen of the State of Massachusetts, in the indorsement of the writ original in this cause mentioned, at whose instance and for whose use the same is instituted, was, after the making of said writing obligatory, and during the time within which said Daniel was sheriff as aforesaid, to wit, on the within day of June, in the year eighteen hundred and fifty, lawfully present in Washington county aforesaid, and engaged in and about his lawful business; and the said Daniel South, sheriff as aforesaid, was then and there also present with the said Jonathan W. Pottle, when certain evil-disposed persons came about the said Jonathan W. Pottle, and by force and arms hindered and prevented him in the execution of his lawful business, and threatened the life and personal safety of the said Jonathan W. Pottle, and with force and arms demanded of said Jonathan W. Pottle a large sum of money, the property of the said Jonathan W. Pottle, to wit, the sum of twenty-five hundred dollars, and then and there unlawfully and injuriously, and against the will of the said Jonathan W. Pottle, and also against the laws of the said State, and without any legal warrant, authority, or legal or justifiable cause whatsoever, did imprison, and detain so imprisoned there the said Jonathan W. Pottle for a long space of time, to wit, for the space of four days then next ensuing, and until he, the said Jonathan W. Pottle, had paid to the said evildisposed persons the sum of two thousand five hundred dollars for his enlargement, and other wrongs to the said Jonathan W. Pottle then and there did, to the great damage of the said Jonathan W. Pottle, and against the peace of the State of Maryland.

And the said Jonathan W. Pottle then and there applied to the said Daniel South, sheriff as aforesaid, then and there present, to protect and defend him, the said Jonathan, from the said unlawful conduct and threatened violence of the said evil-disposed persons, and to preserve and keep the peace of the State of Maryland, in Washington county aforesaid, the said Daniel South, sheriff as aforesaid, then and there having the power and authority so to do. But the said Daniel South, sheriff as aforesaid, did then and there neglect and refuse to protect and defend the said Jonathan from the said unlawful conduct and threatened violence of the said evil-disposed persons, and to preserve and keep the peace of the State of Maryland, in Washington county aforesaid; and so the said plaintiff saith that the said Daniel South did not well and faithfully execute the office of sheriff of Washington county, in all things appertaining thereto according to the form and effect of the condition aforesaid, to wit, at the district aforesaid, whereby the said writing obligatory became forfeited, by reason whereof an action hath accrued to the said plaintiff to demand and have of and from the said defendants the said sum of twenty-six thousand six hundred and sixty-six dollars and sixty-six and two third cents.

Nevertheless, the said defendants, although often requested, have not, nor hath either of them paid the said sum of money above demanded of them, or any part thereof, but so to do have hitherto wholly refused, and still do refuse, to the damage of the said plaintiff twenty thousand dollars; and thereupon it brings suit, &c.

DOBBIN AND TALBOTT, For plaintiff.

Mr. Nelson, for the plaintiffs in error, made the following points, viz:--

1. That the declaration contains no cause of action entitling the plaintiff to recover against the sheriff and his sureties within the condition of the official bond, according to the laws of the State of Maryland.

2. That the sheriff, as conservator of the public peace, is not liable to a civil action for an injury to the person or property of an individual from a riotous assembly, or mob, according to any law of the State of Maryland, even if it should appear that said sheriff unreasonably omitted or neglected to exert his authority to suppress it. 1 Thomas's Coke, 81, 82; Comyn's Dig. tit. Viscount-authority of a sheriff (c. 1.); Watson's Sheriff, 2, 3; 1 Perry & Davidson, 297; Pitcher v. King, 2 Barnewall & Ald. 473; Hilary v. Breare and Holmes, 1 Moody & Malkin, 52; Tensley v. Nassau, 7 State Trials, 442; 6 Howell, 1094; Soames v. Barrardister; 12 Coke, 24.

3. That the sheriff, as conservator of the public peace is not liable to the plaintiff in an execution attending personally upon the levy or sale under it for an injury to his person or property from a riotous assembly or mob, according to any law of the State of Maryland, even if it should appear that said sheriff unreasonably omitted or neglected to exert his authority to suppress it.

4. That in the case last stated the sheriff would not be liable to the plaintiff in the execution, if he desisted in good faith from the exertion of his authority at the instance and request of said plaintiff, while in the hands of the mob from an apprehension of greater bodily injury if an effort should be made to suppress it. 6 Barn. & Cress. 739, Cook and others v. Palmer; 8 Barn. & Cress. 598; 7 Missouri, 536; 13 Ibid. 437.

5. That however true it may be as a general proposition, that the sheriff is responsible for the acts and omissions of his deputy, yet that in this case no such responsibility exists, because, by his declaration, the plaintiff charged no such acts or omissions.

6. That there was error in the instruction give by the court below; because it took from the jury the inquiry whether the omission of the sheriff to exert his authority to suppress the riot, was unreasonable or otherwise.

Mr. Dobbin and Mr. Johnson, for the defendant in error, made the following points, viz:--

1. That the sheriff, South, was virtute officii, the conservator of the peace of the State. Dalton on Sheriff, 26; Com. Dig. Sheriff, C. a, C. 1, C. 2; 2 Hawk, P. C. c. 8, § 4; Cro. Car. 27; 8 Bac. Abr. 689, tit. Sheriff, L.

2. That, as sheriff, he was responsible for the acts and omissions of his deputies; and that, whether so or not, South, the high sheriff, having been present during two days of the riot, became responsible for all omissions of his official duty after such presence. Dalton, 176; 8 Bac. Abr. 675; 2 McLean, 193; 6 Shep. 277; 2 App. 93.

3. That the sheriff's official bond, which is here the subject of suit, is liable for every failure on his part to faithfully execute his office of sheriff in any thing appertaining thereto, and that his failure to protect and relieve Pottle was a breach of the condition of the bond, upon which a right of action accrued to Pottle against the sheriff and his sureties. 1 Pet. 46; 12 Pick, 303; 6 Wend. 454.

4. That the sheriff, having permitted the said unlawful duress of imprisonment to be made and continued, is not discharged from liability therefor by any declaration made by Pottle during such duress.

Mr. Justice GRIER delivered the opinion of the court.