Michael Ranahan vs. William O'Neale, Jr., 6 G. & J. 298

Stephen, J., delivered the opinion of the court.

It is true that in actions of trespass similar to the present, the plaintiff is not bound to prove the whole of his gravamen as laid in his pleadings, but may recover less than he claims, and according to the extent of his proof as given to the jury; but in this case we are informed by the statement of facts, that the suit was brought for taking and selling the property in question, and damages have been assessed by the jury co-extensive with the plaintiff’s claim; and the question submitted to the court was, whether the plaintiff was entitled upon the facts agreed, to retain the verdict and to have a judgment entered upon it.

The question therefore presented to the court for their decision seems to have been, whether the plaintiff was entitled to recover generally, or in other words, whether he was entitled to recover to the whole extent of his demand. We do not think that his right to recover can be sustained to that extent, as it would involve the responsibility of the sheriff for

an act, as a tort, which as an officer of the law he was bound to perforin. In selling the property under the fieri facias, he cannot be considered as a trespasser or wrong doer, and responsible in damages to the party claiming title to the property. He acted only in obedience to the mandate of the law, and it would be strange if the law, whose mandate he obeyed, should hold him responsible in damages for such obedience.

Nor was it essential to justice in this case, that the appellant should be entitled to call in question the legality of the sale so made, in order to vindicate his rights of property, if wrongfully seized or illegally violated; because having had notice of the attachment of his property, as claimed by him, he had a right on the return of that attachment, to have appeared in court, and there moved to have quashed the attachment.

In 3 Harr. and McHen. 552, 553, the former chief judge of this, court, in delivering the opinion of the court in the late general court, upon the case of an attachment then pending-before him, lays down the following principles in relation to that species of process, and the mode of proceeding under it. He there says, that “for an apparent defect in the proceedings before the court, the attachment may be quashed, upon suggestion of such defect to the court, either by the defendant himself, or a third person claiming an interest in the property attached. The attachment being a

summary proceeding, not changing its nature until there is an appearance with bail, every fact is cognizable by the court which will shew the attachment issued irregularly, or to show the property attached does not belong to the defendant, and evidence dehors or extrinsic, the proceedings may be resorted to, and the proof is to be made to the court, because the proceeding is

summary and without the intervention of a jury.” The appellant then, in this case, having full knowledge in fact of the attachment of his property, although it may be that he was not legally warned by the sheriff, might have appeared if he had thought fit, and moved the court to release, or exonerate it from the effect and operation of the attachment. This he did not do, in consequence of which it was condemned, and rendered liable to execution and sale, for the purpose of satisfying the plaintiff’s claim.

Upon the best and most mature consideration we have been able to give the subject, we think that there is no error in the judgment of the court below, and that the same ought to be affirmed; the sheriff having sold the property by virtue of a fieri facias, issued upon the judgment of a court of competent jurisdiction, cannot be responsible in damages for making such sale. 10 Johns. Rep. 138.

In that case the rule is stated to be, that “where a court has jurisdiction of the subject matter, it is sufficient to justify the officer executing its process, for the officer is not bound to examine into the validity of its proceedings, or the regularity of its process.” To the same effect see 10 Coke, 76, where the distinction is stated to be this, “where a court hath jurisdiction of the cause, and proceedeth inverso ordine, or erroneously, there the party who sueth, or the officer, or minister of the court who executeth the precept or process of the court, no action lieth against them.

But when the court hath not jurisdiction of the cause, then the whole proceeding is coram nonjudice, and actions lie against them, without any regard of the precept or process.” The authorities above cited clearly shew, that the sheriff in the case before this court, was justified in making the sale, and of course was not responsible in damages for that act. JUDGMENT AFFIRMED.