State Ex Rel. German v. Timmons

Boyd, ]., delivered the opinion of the Court. This is an action on a constable’s bond, and the declaration alleges that a distress warrant was directed to the constable against the plaintiff, William German, but in the service and execution of it he “ did illegally and wrongfully seize, sell and dispose of certain goods and chattels of the plaintiff,” etc. The suit seems to have been brought on the theory that the constable and his sureties were liable ¹¹ because the former made a sale of German’s property, which was illegal by reason of the fact that he had not made a levy or inventory of the goods or given notice to the tenant, as required by the Statute of 2 William and Mary, chapter 5, in force in this State, but, under our view of the case, it will be unnecessary to discuss those omissions. In the course of the trial the defendants were required to produce the distress warrant under which the constable proceeded, and the plaintiff offered it in evidence. To the account annexed to it there is no affidavit.

Section 8 of Art. S3 of the Code provides, that “ Every landlord or his agent, who may be authorized to distrain for rent due him, shall previously to making such distress, make oath before some Justice of the Peace * * * * that his tenant is justly and bona fide indebted to him in the sum of-dollars and--cents,” etc. Section 9 provides, that “To every warrant authorizing any bailiff to levy a distress for rent there shall be prefixed or annexed the account of such landlord ***** together with an affidavit thereon, in substance, as required by the preceding section,” and section 16, that “ Every distress for rent which shall be made contrary to the provisions of this article and all sales made under and by virtue of such distress, shall be absolutely illegal and void.” That this warrant was wholly lacking in one of the most important requirements of the statute (the affidavit), and therefore null and void, cannot be doubted. As was said in Cross v. Tome, 14 Md. 247 , the object of these provisions is “to protect the tenant from onerous and oppressive proceedings by the landlord, and to prevent the levying of excessive distress by requiring the sum claimed, as actually due and in arrears, to be clearly stated and verified by oath.” The warrant being null and void, it is manifest that the landlord would not have had any remedy against the constable’s bond if he had failed or refused to act under it, and the question to be determined is whether the tenant can hold the sureties responsible for any acts done under it. ¹² There can be no doubt that a constable acting under a void warrant is a trespasser and is not protected by reason of such a warrant being issued to him, if he enforces it, for, although the law does not hold an officer responsible as a trespasser for acting under a warrant that is merely defective or irregular, yet, when it is void on its face, it is as if no warrant had been issued to him. That being so, how can there be any recovery against the sureties, of this constable for the alleged illegal acts done by him under this so-called warrant? The case of State, use Vanderworker v. Brown et al., 54 Md. 318 , is conclusive of the question.

It is there said, “ The condition of the bond is ‘ that he shall well and faithfully execute the office of constable.’ By this contract the sureties guarantee the public against official delinquency on the part of the officer. For any breach of official duty his bond is responsible ; this is the extent of liability assumed by the sureties. If he commits a