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Fish v. NETHERUUTT.

(14 WASHINGTON, 582.) OFFICIAL BOND OF SHERIFF, ACTS WHICH CONSTITUTE BREACH OF.—The seizure by a sheriff of the goods of one person under process against another, is such an official act as constitutes a breach of his oflicial bond.

DAMAGES, MEASURE OF.-IT PROPERTY IS WRONGFULLY TAKEN BY AN OFFICER, but not under such circumstances as to support the presumption of malice or a desire to oppress on his part, the ralue of the property when taken, or at such time as plaintiff may elect between the time of taking and the bring. ing of the action, with interest thereon, is the measure of damages.

DAMAGES, ERRONEOUS INSTRUCTION RESPECTING.An instruction in an action against a sheriff, in which it is alleged that he had wrongfully and unlawfully taken property of the plaintiff, that the jurors may consider the value of the property and the circumstances in which it was taken, and also any sense of wrong suffered and feelings of humiliation and disgrace engendered by the wrongful taking, is erroneous, there being no allegation in the complaint that the taking was with unnecessary violence, or that there was any intent to harass or oppress the plaintiff. Nor is the error in the instruction rendered harmless by the further instruction that they cannot give anything by way of exemplary damages.

D. W. Henley, and Plummer & Thayer, for the appellants. Harris Baldwin, for the respondent.

683 HOYT, C. J. Defendant Rinear was sheriff of Spokane county. Defendants Nethercutt were husband and wife and the owners of a mortgage made by one Emery Fish. The other defendants were sureties upon the official bond of said sheriff. The mortgage held by the Nethercutts was placed in the hands of the sheriff for foreclosure, and, by virtue thereof, the property in dispute was taken into his possession as that of the mortgagor, Emery Fish. The plaintiff, the wife of said Emery Fish, brought this action to recover damages for the conversion of the property, claiming that it belonged to her, and that her husband had no interest whatever therein at the time it was mortgaged or at the time when it was taken by the sheriff in the proceeding to foreclose. In plaintiff's complaint the property was alleged to be of the value of two hundred and fifty dollars. The trial of the issues made upon this complaint resulted in a verdict and judgment for the plaintiff in the sum of six hundred and twentyeight dollars, besides costs.

Two reasons are stated in the brief why this judgment should be reversed: 1. That the complaint does not state a cause of action; and 2. That the court gave an erroneous instruction to the jury as to the measure of damages. The claim that the complaint is insufficient is founded upon the fact that it appears upon its face that the plaintiff was a stranger to the process under which

an

the sheriff was acting when he seized her goods. And it is contended that the action of the sheriff in taking the goods of a stranger to the

process under which he was acting was not such 684 official act as to constitute a breach of the conditions of his official bond, if wrongful; and the case of Marquis v. Willard, 12 Wash. 528; 50 Am. St. Rep. 906, is cited to sustain the contention. An examination of that case, however, will show that the question thus presented was not therein decided. On the contrary, it will appear from the opinion that the weight of authority was to the effect that the seizure by an officer under process of the goods of a person not named therein was, though a pure trespass, such an official act as to make the sureties on his bond liable for damages. What was decided in that case was, that if an officer without process did an act which the undisputed facts showed he had no right to do, such act would not be done by virtue of his office, but at most only under color of office.

The distinction which was there attempted to be drawn, and which seems to be founded upon a correct course of reasoning, was, that when an officer was called upon to act in his official capacity, the sureties upon his bond would be liable for such action, even though he should so depart from the command of the process under which he was acting as to make his act thereunder a pure trespass; but that, when there was nothing which called upon him to act in his official capacity, the fact that he assumed to do so in violation of law would not warrant the holding that his action was by virtue of his office. In other words, the sureties upon the official bond of an officer are liable for a mistake of fact made by the officer in attempting to discharge a duty which he is called upon to perform by virtue of his office, but are not liable for a mistake of law, by reason of which he assumed to act as an officer, when the undisputed facts show that he was not called upon to act in his official capacity. This 585 view seems to us a logical one, and the appellants having conceded that the greater number of cases hold in accordance therewith, we feel justified in adopting it. It was recognized in the case of Mace v. Gaddis, 3 Wash. Ter. 125. The complaint having shown that the sheriff had process in his hands which called upon him to take the property in question, if the property of the mortgagor, his mistake in taking thereunder the property of the plaintiff was one of fact, and, being a question of fact which he had to decide in the discharge of his duties as such sheriff, the sureties upon his bond were responsible for his mistake in deciding it.

The court instructed the jury that, in determining the damage to which the plaintiff was entitled, they might consider the value of the property and the circumstances under which it was taken, and also any sense of wrong suffered and feeling of humiliation and disgrace engendered by the wrongful taking of the property. Whether or not such would have been a proper instruction if the complaint had alleged facts tending to show that the taking was with such unnecessary violence as to show malice, or even as to show an intent to harass or oppress the plaintiff, we are not now called upon to decide. It was only alleged in the complaint that the taking was wrongful and unlawful, and under such an allegation the value of the property when taken, or at such time as the plaintiff may elect between the time of taking and the bringing of the action, with interest thereon, is the measure of damages. It is claimed on the part of the respondent that this instruction must be interpreted in the light of another one given by the court, to the effect that they could give nothing by way of punitive or exemplary damages, but, in our opinion, it did not state the law, 686 even when aided by such instruction. If, when the taking is alleged to be unlawful and no facts tending to show malice or desire to oppress are alleged, the measure of damages is the value of the property with interest, it was error on the part of the court to authorize the jury to take into consideration any other elements of damage.

The judgment will be reversed and the cause remanded for a new trial.

Scott, Anders, Dunbar, and Gordon, JJ., concur.

SHERIFFS_WRONGFUL SEIZURE-BREACH OF BOND.-Å sheriff who, having execution against the goods and chattels of one person, levies upon and sells those of another, is not guilty of a breach of his official bond, and his sureties are not thereby rendered liable: State v. Conover, 28 N. J. L. 224; 78 Am. Dec. 54. The îndemnitors of an officer who has levied upon property not subject to his writ are jointly and severally liable as principals for the original unlawful undertaking: Dyett v. Hyman, 129 N. Y. 351; 26 Am. St. Rep. 533. The sureties on a sheriff's bond are liable for lery of execution on the property of a stranger to the writ: Note to Holliman v. Carroll, 27 Tex. 23; 84 Am. Dec. 607. See, also, the extended notes to Ives v. Jones, 40 Am. Dec. 425, and Commonwealth v. Cole, 46 Am. Dec. 514.

DAMAGES-MEASURE OF, FOR WRONGFUL SEIZURE OF PROPERTY.-Where an attachment is simply wrongfully sued out, but without malice, only actual damages can be recovered: Reed v. Samuels, 22 Tex. 114; 73 Am. Dec. 2.13, and note; Dickinson v. Maynard, 20 La. Ann. 66; 96 Am. Dec. 379, and note: Ellis v. Bonner, 80 Tex. 198; 20 Am. St. Rep. 731. A defendant in an attachment wrongfully sued out, though there was no actual seizure of his property, if the levy was such as to place it in the custody of the law, is entitled to recover such actual damages as result to him from being virtually dispossessed of his property during the time the levy was in force: Rice v. Miller, 70 Tex, 613; 8 Am. St. Rep. 630. See, also, the note to Empire Mill Co. v. Lovell, 14 Am. St. Rep. 274, and the extended note to Burton v. Knapp, 81 Am. Dec. 467.

CASES

IN TH

SUPREME COURT

OF

WISCONSIN.

NYE v. SOCHOR.

(92 WISCONSIN, 40.) JUDGMENT-RELIEF IN EQUITY FROM.-Before relief will be granted in equity against a judgment at law, it must appear that there was a good defense to the action, which the defendant was prevented from making by fraud, accident, mistake, or surprise, unmixed with laches or negligence on his part.

JUDGMENT, RELIEF AGAINST FOR FORGETFULNESS.The fact that a defendant against whom an action was pending utterly forgot all about it, and for that reason failed to take an appeal until the time within which it could be taken had expired, does not entitle him to relief from the judgment in a suit in equity, though he bad a good defense to the action, and the judgment against him is inequitable and such that relief therefrom would have been granted had he not been guilty of negligence.

JUDGMENT, FRAUD IN PROCURING.-It cannot be successfully contended that there was fraud in the recovery of a judg. ment because the plaintiff, as a witness in his own behalf, in testifying to the facts constituting his alleged cause of action, made no mention of a chattel mortgage and the seizure of the property in question under it for the payment of the debt secured thereby, under wbích mortgage it is claimed by the defendants that they rightfully took the property, they not being present or represented at the trial.

Suit in equity to enjoin the enforcement of a judgment rendered in favor of the defendant in this action and against the plaintiffs for damages and costs of suit. From the complaint, it appeared that in the original action the plaintiff therein had no cause of action against the defendants therein; that the matter of making a defense had been intrusted to one of the defendants, named Lusk, who failed to attend the trial because he miscalculated the time and missed the train; that he thereupon telegraphed to the plaintiff in the action requesting a continuance, but received no answer; that the defendants intended to appeal

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