State v. Carrick

Miller, J., delivered t.he opinion of the Court. The suit in this case is upon the official bond of a justice of the peace executed under the Act of 1816, ch. 28. The defendants, Avho are the magistrate and his sureties in the bond, demurred to the declaration. The Court below sustained the demurrer, and gave judgment for the defendants, and hence this appeal.

The Act referred to requires each justice of the peace of the City of Baltimore, to give a bond to the State Avith surety or sureties, in the penalty of $5000, “ with conditions that he Avill truly and faithfully discharge, execute, and perform all and singular the duties and obligations of the office of justice of the peace; and that he will account for and pay over” to the officials and parties entitled to receive the same, all fines, penalties, and forfeitures, and all money which may come to his hands as such justice of the peace. ⁵⁸⁸ The breach relied on, as we gather from the declaration, is substantially as follows: One Aaron Oohen brought an action of replevin before Garrick, the magistrate, against Sarah Whitehill, who Avas a sempstress, for the recovery of certain chattels, among which Avas a sewing machine. The ju-operty was taken under the Avrit of replevin and delivered to Oohen. Upon the trial of the case -by the magistrate he gave judgment in favor of the defendant, Sarah, “for the return of the goods, chattels, and effects replevied from her by the said Oohen, and for one cent damages and costs." As soon as this judgment Avas rendered, the defendant, Sarah, applied to the magistrate to issue the writ of retorno habendo for the return of her property, her purpose being to regain at once possession of her sewing machine, upon the use of which her livelihood depended; but the magistrate, as the-declaration alleges, “ wrongfnlly and wilfully and defiantly refused and declined to issue said Avrit” until a mandamus had been issued by Baltimore City Court to compel him to do so. Such is the complaint, and the question is, does the neglect or refusal to issue this Avrit amount to a breach of the obligation imposed upon the magistrate by this Act of Assembly and his bond.

The declaration does not charge that he acted maliciously, fraudulently, and corruptly, and if Ave could bring our minds to the conclusion that the issuing of this writ involved in any degree the exercise of judgment or discretion, we should hold the action Avould not lie, for it is Avell settled that neither a justice of the peace nor any other judicial officer can be .held liable, either civilly or criminally, for error of judgment, or mistake honestly made in regard to the performance of any judicial act or duty. Knell vs. Briscoe, 49 Md., 414 . But here the defendant was entitled to have the judgment in her favor executed at once, un ⁵⁸⁹ less the plaintiff had taken an appeal, and given an appropriate appeal hond. The proper writ of execution upon such a judgment in an action of replevin is a retorno habendo, directed to the sheriff, commanding him to cause the property taken under the writ of replevin to be delivered back to the defendant, and the sheriff must execute it by force, if necessary.

It is true, this process is not often resorted to in practice, as the usual remedy is upon the replevin bond, but it is a writ of final execution on á judgment like this, and is used whenever the defendant desires to regain possession of the specific property. 2 Poe’s Pl. & Pr., sec. 624; 2 Harr. Ent., 725. The defendant, in accordance with the local law on the subject (2 Code of 1860, Art. 4, sec. 622) made demand in person upon the magistrate to issue this writ. It was a writ of execution which the laiu awarded to her on her judgment as of right, and we are constrained to hold that the issuing of it hy the magistrate was an official act which it was his duty to perform, and which in its nature was purely ministerial, involving no exercise of judgment or discretion.

The question has not hitherto arisen in this Court in regard to executions to be issued by justices of the peace, and in the Courts of general jurisdiction such process is always issued by the clerks, whose official bonds are unquestionably responsible for neglect or refusal to act in such cases. But in other States, wherever a case has arisen in regard to magistrates, the authorities are uniform to the effect that to issue an execution is to perform a ministerial act. Noxon vs.