Holliman v. Carroll's Adm'rs , 27 Tex. 23 ( 1863 )

Wheeler, C. J.

The only question presented by the record is, whether the sureties of the sheriff, on his official bond, are liable for a trespass committed by the sheriff in taking the goods of the plaintiff, in an attempt to execute valid process issued against the property of another.

Upon this question the authorities are conflicting. In Crocker on Sheriffs, it is laid down that they are liable, and he refers to the case of the People v. Schuyler, decided by the court of appeals of New York. (4 Comstock, 173.) The subject-was .very fully examined by the court in that case, and the liability of the sureties maintained upon reasons which apply equally to the terms and conditions of the bond in this case. The case of Carmack v. Commonwealth, (5 Binney, 184,) is also a well considered case, maintaining the same doctrine upon a sheriff's bond, containing substantially the same stipulations as the bond in this case. The same doctrine has been maintained in Kentucky. (Forsyth v. Ellis, 4 J. J. Marsh., 299.) And other concurring authorities are referred to by the court in support of their decisions in the case of The People v. Schuyler, 2 Comstock, 182.

The sheriff received the process in virtue of his office. His sureties undertook that he would “ well and truly” execute the process. This he failed to do to the injury of the plaintiff. He was guilty of malfeasance in attempting to perform an official duty; and we think with the court in the case last cited, that upon principle and upon grounds of public policy, the responsibility of his sureties should be different from those they would incur if the sheriff had seized the goods of the plaintiff without any process whatever. In that case, as was said, he would act in his own right and might be resisted as any other wrong doer. In the present, he was put in motiqn by legal authority invoked in behalf of others, and could compel the power of the county to aid him .in its execution. His official character would forbid opposition. We think the weight of authority and principle concur in holding his sureties responsible for his malfeasance. The court below so held, and we are of opinion that the judgment be affirmed.

Judgment affirmed.

Moore, J., having been of counsel, did not sit in this case.