Eddy v. Heath's Garnishees

Scott, Judge,

delivered the opinion of the court.

In the statement we will endeavor to simplify this rather intricate transaction, omitting nothing material to the determination of the point on which the cause turns. Twitchell *144 was United States marshal for the district of Missouri, with Simonds and McAllister, the garnishees in this cause, as his securities on his official bond, and there was placed in his hands for collection an execution in favor of Heath, the defendant in this cause, against one Sands. The property of Sands was levied upon by the marshal to satisfy this execution. Another person claimed the property, the right to which was tried by a jury and found to be in the claimant. Heath thereupon gave the marshal a bond of indemnity, with Eddy, the plaintiff, as one of the securities, and the marshal sold the goods, and the proceeds, after satisfying costs, amounted to the sum of $6,377.15, out of which he paid $4,301.54 to Heath, leaving in his hands the sum of $2,075.91, which he failed to pay over, although often requested so to do.

The claimant of the property levied on afterwards assigned his right to indemnity to Erothingham, who sued Eddy, the security, and recovered a judgment for upwards of $18,000, which Eddy satisfied. Whilst the suit on the bond against Eddy was pending he gave notice to Heath, his principal, of the action, and required him to defend it.

Twitchell, the marshal, afterwards died, having never paid over to Heath, the plaintiff in the execution against Sands and the defendant in this suit, the above mentioned balance of $2,075.91.

Eddy, the plaintiff in this suit and the security in the bond of indemnity given by Heath, brings this action against Heath to recover the money paid by him as security for Heath, and has garnished Simonds and McAllister, the securities of the marshal Twitchell, as being liable to pay to Heath the balance of the proceeds of the execution against Sands, which remained in the marshal’s hands unpaid at the time of his death; or, in other words, as being the debtors of Heath. On this statement of facts, the court below held that the securities of Twitchell were liable as garnishees to the plaintiff Eddy for the debt owed by the marshal to Heath, and gave judgment accordingly.

*145 Our law as to what debts are subject to garnishment does not vary from the generally received ideas in relation to this matter. The fifth clause of the twenty-second section of the first article of the attachment law enacts that when the credits of the defendant are to be attached, the officer shall declare to the debtor of the defendant that he attaches in his hands all debts due from him to the defendant, or so much thereof as shall be sufficient to satisfy the debt and interest or damages and costs, and summon such debtor as garnishee. Various other sections of the same act show that, in the contemplation of the legislature, when credits are to be attached, the garnishee must be a debtor to the defendant.

Admitting that Twitch ell himself was a debtor to Heath in respect of his having feollected money for him on an execution which he failed to pay over and might have been sued for in an action of assumpsit without resorting to a suit upon his bond, yet his securities were liable to no such action, and could only be sued upon the bond for the official misconduct of their principal. If the securities are debtors to him who is injured by the misconduct of the marshal, their indebtedness must arise by reason of the bond. Then if they are debtors for one illegal act of their principal, they must be for all such acts. If a marshal fails to execute any process coming to his hands, are his securities debtors for the damages which may be recovered for such a breach of duty by their principal ? If the marshal is guilty of a trespass in taking the goods of one on an execution against another, are his secxirities debtors to the injured person for the wrong committed ? We do not maintain that the securities are not liable to an action on the bond, and will not be compelled to satisfy any judgment that may be obtained against them; but we do maintain that an illegal act of the marshal, causing an injury to another, does not render his sureties debtors to the injured person in the sense in which that word is ordinarily used in the law, nor in that sense in which it is employed in the statute concerning attachments.

It is said that where an action of debt will lie against a *146 garnishee for his indebtedness, he may be garnished in respect to that debt. This is true when properly applied. But to maintain that because an action of debt will lie against a security for a breach of the bond of his principal, conditioned for a faithful discharge of the duties of his office, he is therefore a debtor to the person injured by the breach, would be a great perversion of the rule. In all its essential elements, the action of debt on a bond with collateral conditions is an action of covenant where the damages are regarded as unliquidated. Because in some cases the damages may be more readily assessed than in others and there may be a certain measure for them, that would not make such damages a debt within the meaning of the attachment act more than in those cases where there would be no standard for their ascertainment but the evidence of witnesses. Where the claim of the defendant against the garnishee rests in unliquidated damages, in no case can the garnishee be made liable. (Drake on Attachments, 548.)

In the case of Hemmenway v. Pratt, 23 Ver. 332, it was held that the liability of a constable to an execution creditor for a breach of official duty in respect to the collection of the execution, can not be attached by a trustee process commenced by,a creditor of the person to whom the constable is thus liable; that a trustee, in order to be held chargeable, must be liable upon a debt or fiduciary obligation, and not for a mere tort or breach of duty. In the case before us, although the marshal himself might have been garnished, as he was liable to an action of assumpsit, yet, as his sureties were subject to no such action, but were only liable for his breach of duty, they could not be garnished. In the case of Lundie v. Bradford, 26 Ala. 512 , it is said that the settled rule of law in this state is, that garnishment only lies to subject those demands for which the judgment debtor could maintain debt or indebitatus assumpsit.

We are of the opinion that the defendants, as sureties of Twitchell, the marshal, could not be garnished in respect to their liability as sureties.

J udgment reversed.

Judge Ewing concurs.