Downs v. Mayor of Baltimore

Peabce, J\, delivered the opinion of the Court, This appeal is from a judgment of the Superior Oourt of Baltimore City overruling a motion to quash an attachment on original process, instituted by the Mayor and City Council of Baltimore against William F. Downs. The affidavit ⁶⁸⁷ alleges that said William E. Downs is bona fide indebted unto the said Mayor and City Council in the sum of $24,680, over and above all discounts, and that the said Mayor and City Council has good reason to believe: 1st. That said Downs has assigned, disposed of, or concealed, or is about to assign, dispose of or conceal, his property, or some portion thereof, with intent to defraud his creditors. 2nd. That the said Wm.

E. Downs frauduently contracted the debt or incurred the obligation aforesaid. The account filed with said affidavit is as follows: “Baltimore, Md., April 3rd, 1909. William F. Downs is indebted unto the Mayor and City Council of Baltimore in the sum of $24,680 for money stolen by the said William E. Downs from the said Mayor and City Council of Baltimore, while the said William E. Dowds was a clerk into the office of the Register of the Mayor and City Council of Baltimore, and acting as such in said office, and in the employment of the said Mayor and City Council of Baltimore, as such, which said $24,680 at the time of such theft as aforesaid by the said William F. Downs, was the property of the said Mayor and City Council of Baltimore, and which said property and money so stolen by the said William E. Downs as alleged, the said William E. Downs has taken away and appropriated to his own use; said sums of money having been stolen on the dates opposite the amounts as follows.” The several separate amounts so alleged to have been stolen, and the several dates on which the several amounts are alleged to have been stolen, are then set out, the aggregate-amount of said several amounts being alleged to be $24,680, and said aggregate amount being stated in said account, not to be, nor intended to be taken as a statement of the entire amount so taken and stolen. The declaration contains three counts for money payable by the defendant to the plaintiff: 1st.

For money received by the defendant for the use of the plaintiff. ⁶⁸⁸ 2nd. For money found to be due from tbe defendant to the plaintiff on accounts stated between' them. 3rd. “For money stolen by the defendant from the plaintiff,” repeating the exact language heretofore transcribed from the affidavit. Certain property was attached, and the defendant moved to quash the writ assigning the following reasons: 1st. Because the Court was without jurisdiction in the premises. •2nd.

Because it appeared from the proceedings that the relation of debtor and creditor never existed in respect to the money , alleged to have been stolen. 3rd. Because it appeared from the proceedings that there was no contractual obligation due the plaintiff induced by the fraud of the defendant. 4th. For other reasons to be shown at the trial of the motion. The second and third reasons are essentially the same, and each merely amplifies and makes specific the general ground of the first reason.

The fourth is the usual general reason alleged, to cover any unforeseen particular objection, but none such has been brought forward. The grounds of objection may be reduced to two, and may be restated thus: 1st. That exclusive jurisdiction of all matters growing out of a larceny or embezzlement is under the law of this State vested in the Criminal Courts. 2nd. That if this contention be denied, there is still no jurisdiction under the attachment law in the civil Courts for want of any contractual relation between the parties in respect to the money alleged to have been stolen.

These questions have never arisen in Maryland, and we shall consider them therefore first upon principle, and then in the light of decisions elsewhere under statutes similar to-our own. ⁶⁸⁹ In order to avoid confusion of mind as to the real question for determination, it must he remembered that at this stage of the case, it is wholly immaterial to inquire whether a larceny or embezzlement has in fact been committed hut merely whether that charge, if sustained by proof at the proper time, is a charge of an indebtedness, either express or implied, which under our statute will warrant an attachment. The motion to quash the attachment is strictly analogous in its operation, to a demurrer in an ordinary suit, in that it admits for the purpose of the motion, all the facts alleged in the affidavit and account, while it challenges the jurisdiction of the Court upon such facts. The test of jurisdiction which is thus necessarily suggested, is this. If the facts thus alleged would sustain an action of assumpsit in the ordinary-form, the attachment should lie, if they would not, the motion to quash should' prevail, or, enlarging the verbal proposition, hut not the legal principle involved, if an action of assumpsit could he maintained upon the facts stated, aside from an attachment, why should an attachment, as an original-proceeding be rendered nugatory merely because accompanied by a proceeding in personam, such as would support a judgment, if there were no proceeding in rem?

This question is sought to be avoided' by the able counsel for the appellant through the contention that under sec. 263 of Art. 21 of our Code of Public General Laws a special statutory jurisdiction is conferred upon the Criminal Courts of the State in all matters of restitution in larceny; “the restoration of the goods, or their value, being predicated on conviction, and being part of the punishment prescribed, and said Courts having exclusive jurisdiction of all felonies committed within the hounds of their authority.” This contention is argued with ability hut after careful consideration we cannot adopt it. It is inaccurate, we think, to say that the restoration of the property stolen is a part of the punishment prescribed. It is a part of the judgment of the Court directed to he entered, hut not a part of the punishment prescribed, not a part of the sentence to he imposed. The lan ⁶⁹⁰ guage of that section is: “Every person convicted of-the crime of simple larceny to the value of five dollars or upwards, shall restore the money, goods, or thing taken, to the owner, or shall pay him the full value thereof, and be sentenced to the penitentiary for not less than one year nor more than fifteen yearsand in practice the Courts observe this distinction, the approved and usual form of compliance with this section being as follows: “The judgment of the Court is that you restore to the owner the property stolen, or the full value thereof, and that as a punishment for your offense, you be confined, etc.” The order for rest nation of the property must be regarded merely as declaratory of the duty of restoration, and as designed to effect an immediate restoration of any of the stolen property in the custody of the Court or of the State’s Attorney without the necessity of recourse to a civil suit for its recovery.

If. the contention of the appellant should be accepted as correct, it would be in the power of every thief who had stolen a chattel, or a bond for the payment of money to bearer, or money, not impounded by the State’s Attorney for use in evidence at the trial, to deliver it over to any other person, and thus effectually deprive the owner of all opportunity of reclaiming it. The larceny of property changes the possession, but does not divest the title. The title to property stolen is as readily established in a civil suit for its possession, as in a criminal prosecution for its larceny, and it cannot be supposed that the Legislature designed by the enactment of sec. 261 of Art. 27, to withold from the real owner, until the conviction of the thief, the common law remedies for the restoration of possession of property wrongfully taken from him, or the common law remedies for recovery of the value of propety or money so wrongfully taken. It is one thing to say, as our Declaration of Rights does say, that the inhabitants of Maryland are entitled to the common law of England, and another to say as the appellant contends, that the common law of England must be enforced in Maryland in all