Harris vs. Hanson & als., 11 Me. 241

Parris J. delivered the opinion of the Court. By statute chap. 91, sec. 5, it is provided, that all Coroners, who shall be appointed in any county in this State, before proceeding to discharge the duties of their office, shall give unto the Treasurer of the State a bond with sufficient sureties, for the faithful performance of the duties of their said office. The condition of the bond, in this case, is, that the said Han~ son shall well and faithfully do and perform all the duties which he is, by lawr, bound to do and perform by virtue of his holding said office.

Although the condition is not in the precise phraseology of the statute, its legal effect and operation is the same. It binds the principal to the faithful performance of the duties of the office of Coroner, and nothing more. We have no hesitation in pronouncing it a valid bond, answering the requisitions of the statute under which it was taken. Allegany County v. Van Campen, 3 Wend. 48.

From the facts agreed it appears that the principal defendant, Hanson, as a Coroner, took the property of Knight on a writ against Maddox; — that Knight reclaimed it by a writ of re-plevin, which he prosecuted successfully to final judgment, and . which the defendant resisted, claiming to hold the property by virtue of his original attachment on the writ against Maddox. The decision in that case, being in favor of Knight, it was thereby settled that the defendant was not justified in interrupting Knight’s possession.

Is this such unfaithfulness in the performance of the duties of his office as amounts to a breach of the ■condition of his official bond ? Is an officer performing his duty faithfully by attaching the property of B. on a precept which 'commands him to attach the property of A.? By so doing, he may be answerable as a trespasser; -— and will the law hold acts ■constituting a trespass, a faithful performance of duty ? There may be cases where the officer might be unable to decide between the different claimants to property.

Under such circumstances, it is his duty to remain passive until he is indemnified by the creditor, who urges him to action. This indemnity secures him, secures his sureties, and with it he may indemnify the injured party, provided it should appear that the property did not belong to him on whose account it w'as attached. But if an officer will heedlessly rush into danger, if he will unnecessarily assume responsibility by acting in doubtful cases, without indemnity, who must suffer, in case he should be unable to meet the damages ?

Shall it be he from whom the officer has taken property without authority, and who has been in no way privy to his appointment or answerable for his faithful performance of duty, or shall it be those who voluntarily assumed the suretyship ? A Coroner is an officer of high authority, clothed with all the power of Sheriff, in case of vacancy in that office, and sometimes, at least, as is shewn by the case at bar, unable to remunerate for an injury of trifling magnitude.

There are no adjudged cases of Coroner’s bonds to be found in the books to which our attention has been called, but there are cases somewhat analogous. The condition of the Coroner’s bond, as prescribed by statute, is similar to that prescribed for sheriffs.

The statute, ch. 91, sec. 1, provides that “every person appointed to the office of sheriff within this State, shall make and execute a bond to the Treasurer of the State, conditioned for the faithful performance of the duties of their respective offices.” This is an exact transcript of the statute of Massachusetts, chap. 44, sec. 1, upon the same subject, which requires, that every sheriff shall give sufficient security unto the Treasurer of the Commonwealth for his faithful performance of the duties of his office; — and by statute of Massachusetts, ch. 43, sec. 1, Coroners were also required to give security in the same manner as sheriffs by law are obliged to do.

Thus, in both States the official bonds of Sheriffs and Coroners are similar. The phraseology, “ faithful performance of the duties of his office,” in the Sheriff’s bond, received a judicial construction in Massachusetts, previous to our separation, and we are to consider that construction as adopted by the legislature of this State, when making use of the same language. In Skinner, Treasurer v. Phillips al. 4 Mass. 73, Parsons C. J. says, “From the manifest import of this condition it is extremely clear, that the condition of the bond is broken by the malfeasance of the Sheriff in his office.

And if the condition be thus broken, the penalty at law is forfeited.” Malfeasance in office is then a breach of the condition for faithful performance. And is it not malfeasance in an officer, to attach the property of B on a process commanding him to attach the property of A ? By the statute of Massachusetts, ch. 44, sec. 1, the Sheriff is required to give bond to answer for the malfeasance of his deputies. In Knowlton v. Bartlett, 1 Pick. 274, the Court say, “ If the act from which the injury resulted was an official act, the authorities are clear that the Sheriff is answerable.

But an official act does not mean what a deputy might lawfully do in the execution of his office; if so, no action could ever lie against a Sheriff for the misconduct of his deputy. It means, therefore, whatever is done under color or by virtue of his office.” It is malfeasance, if the officer under color of his office does what the law prohibits. Bond v. Ward, 7 Mass. 130. In Grennell v.

Phillips, 1 Mass. 530, the Court held, that the taking the goods of a stranger to satisfy an execution, was such malfeasance in a deputy as rendered the Sheriff liable in an action of trespass, and such has been considered the settled law. Campbell v. Phelps, 1 Pick. ,66. If taking the goods of a stranger is such malfeasance in a deputy as renders him liable to the Sheriff) as it must be if the Sheriff is answerable for the act, can it be that the same act by the Sheriff would not amount to malfeasance in himself; — and if the Sheriff is answerable on his official bond to the person injured by such

an act of the deputy, is he not in the same manner answerable for the like act done by himself? We have pursued this mode in examining the case, because it was contended for the defendant, that his liabilities were the same as those of Sheriff. If it be so, we think it is manifest that the Sheriff is liable to all persons injured by his official acts, that is, by acts done under color of his office; — and that one of the objects of his bond is to afford security against such injuries.

But it is said that the action of replevin was not against the defendant as an officer, for malfeasance, but against him in his private capacity. The answer is, the defendant has elected to justify as an officer. He claimed protection under his official character, by alleging that the act done was under color of his office, and that was not controverted by the plaintiff in replevin. The question in issue was virtually whether, as an officer, he had a right to do the act.

That question was decided against him, and the law resulting from that decision, pronounces the act done, malfeasance in office; —■ as completely so, as if, instead of re-plevin, the original. action had been trespass, and he had been charged by the verdict with the full-value of the property taken. The sureties on the bond are not injured by this. Their liability is'diminished, as by replevin, the original plaintiff regained possession of his property, and the sureties, consequently, escape from damages for its value, to which they might have been liable if the action had been trespass.

We do not decide that the sureties are precluded from shewing, if they can, that the taking was not under color of office. If there was collusion between the plaintiff in interest and the defendant to render the sureties answerable for

an act done by the defendant, not as Coroner, but in his private capacity, we should hesitate before we should deprive the sureties of an opportunity to show it. Hayes v. Seaver, 7 Greenl. 237; Foxcroft v. Nevers, 4 Greenl. 72. But there is no such pretence in this case. The agreed statement expressly finds that the defendant, Hanson, as Coroner, in his said capacity, took the wagon as the property of Maddox, and duly made return thereof, it being at the same time the property of Knight.