
    COURT OF APPEALS, JUNE TERM, 1820,
    Mark vs. Lawrence.
    s«A5suppm-?ecimaf eapaclty°of depuáVronsMoer.1 “
    riff a ¡n’’“seifhig com-the plaintiff in which the fC fa-issued, is satisfied h|8debt,an<tctionty, of trover may be deftn'dant m such good™eaKain»tthe ÍwÍouk líoef’as
    !¡asVhh*n lucí )>c1adeputysising atyiií‘,ui“ó™ fraud l,ommlts a
    Appeal from Frederick county court. An action of ^r0US^ by the present appellee. The declaration contained two counts; the first, a count in trover in the usual form; and the other a special count against the defendant below, (now appellant,) as deputy sheriff, stating the whole case, viz. “And whereas also, on the, &c-there issued out of Frederick county court a certain writ of fieri facias, directed to the then sheriff of the said coun- . . recitms;—That whereas at a county court begun and, J 7 » ^ «/ O on> at, &c. a certain John Dill, by judgment of ^le same cotlrt, recovered against a certain Joseph W.Lawrmcei [the plaintiff in the court below, and appellee in this C0U1't,] as well the sum of,” &c. [reciting the judgment. the said sheriff was commanded, that of the goods and chattels, lands and tenements, of the said J. TV. L. being in his bailiwick, he should cause to be levied the debt, &c. and that he should have those sums of money, &c. On which said writ there' was written a certain endorsement, as follows, to wit: To be released on payment of SI 04 current money, with interest, &c. That the said writ was afterwards, &c. delivered to the then sheriff of Frederick county, to he executed; by virtue of which said writ, the said then sheriff afterwards, &c. as sheriff, seized and took in execution divers goods, &c. of the said J. W. L. then and there found, and being of a large value, to wit: One negro woman called, &c. of the value of, &c. one negro girl, &c. and one negro girl child, &c. And the said J. W. L. avers, that at the several times hereinafter mentioned, the said John Mark, [the defendant in the court below, and appellant in this court,] was the deputy of the then sheriff aforesaid, by him lawfully appointed; and so being the deputy, he the said J. M. was afterwards, to wit, on, &c.. at, &c. authorised by the then sheriff aforesaid, as his deputy, to sell the said goods, &c. of the said J. W. L. or much thereof as would make the said sum of money mentioned in the indorsement of the writ of fieri facias aforesaid; yet the said J. M. well knowing the premises, minding and fraudulently intending to deceive and defraud him the said J. W. L. altogether refused and neglect-to sell the said negroes, as it was his duty to do; and in order to secure to him the said J. M. the benefit and advantage of the said goods, &c. afterwards, to wit, on, &c. at, &c. falsely and fraudulently pretended to sell the said negroes to a certain Joab Waters, for the sum of 8210/ and the said J. M. under colour of the said pretended sale, fraudulently contrived to hold the said negroes in his possession, and to receive the use and benefit thereof; and afterwards, to wit, on, &c. at, &c. sold and converted the same to his own use; whereby he the said J. W. L. is injured, and hath wholly lost the said goods and chattels, to the damage of the said J. W, L. the sum of 82,000 current money; and therefore he brings his suit, &c.,!l The defendant pleaded the general issue.
    1. At the trial of the cause in the county court, at August term 1813, the plaintiff offered in evidence a writ of fieri facias, issued out of the said court on the 18th of August 1809, on a judgment obtained in that court by John Dill, against him the plaintiff, for S200 current money, damages, and STlIbs. of tobacco, costs, endorsed, to be released on payment of 8104, with interest from the 11th of Januai-y 1808, and costs; which fien facias was returned by the sheriff, satisfied plaintiff. The plaintiff also offered in evidence, that the said writ came to the hands of the sheriff, and that he seized and took the negroes as are mentioned in the second count of the declaration in this cause; that the said John Mark, (the defendant,) was the deputy sheriff, and authorised to sell the said negroes, as is also stated in the said declaration. That the said negroes were the property of the plaintiff, as mentioned in the said second count of the declaration. That on the day appointed for the sale of the said negroes, the defendant set up the said- negroes all together, and refused to offer them separately, for sale, and that the whole of them was struck off to Joab Waters, for the sum of 8210. That Waters was not in truth the purchaser, but only colourably, and that he bid for them for the defendant, who thereupon took them into possession as his own, and a few .days afterwards sold them to one E. B. for 8360. The defendant then offered evidence, that the said sale was conducted fairly; and then prayed the opinion of the court, that upon the evidence above stated, the plaintiff was not entitled to recover; which opinion the court, [Shriver and Nelson, A. J.] gaye. The plaintiff excepted;-and the verdict and judgment being against him, be appealed to this court.
    The proceedings were accordingly remitted to the county court for a new trial, and the cause was again tried in that court, at October term, 1817;
    2. The plaintiff gave the same facts; &:c. in evidence as ai;e stated in the preceding bill of exceptions; and the defendant then offered in evidence sundry accounts for officers fees which came to his hands for collection; the amount of which, (8818 10 10,) was levied with the said fieri facias on the said negroes; and that a regular appraisement of the negroes was made, amounting to g280; that advertisements, dated the 5th of September, 1809, in which the negroes are mentioned, were set up by the defendant, five days previous to the day of sale, at the tavern of a Mr. Wagers, in the town of New-Market, in the neighbourhood of the plaintiff, notifying that there would be sold for cash, on the 11th instant, at the dwelling-house of the plaintiff, one negro woman and two children, &c. taken as the property of the plaintiff, by virtue of the before mentioned fieri facias, and on a distress for fees, and that the sale would commence at 9 o’clock. He also proved, that he had paid over to the sheriff the officers fees and money collected on the fieri facias and distress; and further proved by John Dill, the plaintiff in the said fieri facias, that on the day of the sale by the defendant, he, the witness, attended for the purpose of buying the negroes; that he and a Mr. Filemier, agreed to purchase them jointly; that he bid several times for them, until he thought he had offered as much as they were worth; that Joab Waters, for the defendant, bid §210. That the sale began between 9 and 10 o’clock in the morning, and continued until near 12 o’clock. That after Waters bid the §210, the defendant continued to cry them for some time, warning bidders and buyers in the usual way; that there were about 15 or 20 persons at the sale, and that the whole sale was conducted fairly, and the negroes struck off to Waters, who was the highest bidder. The defendant also proved by the game witness, that an advertisement, like the one before mentioned, was put up at his tavern in Frederich-toxm, some days previous to the day of sale. The plaintiff then prayed the court to direct the jury, that if they believed the evidence, they must find a verdict fpr the plaintiff. Which direction jhe court, {Shriver and T. Buchanan, A, J.] gave. The defendant excepted; and the verdict and judgment being against him, he appealed to this court, where it was argued at this term before Earle, Johnson and Dorsey, J.
    
      The case was argued in this court at December term 1815, before Buchanan, Nicholson, Earle, Johnson and Martin, J.
    ■ Taney, for the appellant.
    He cited 1 Chitty’s Plead.73-, 74. Lane vs. Cotton and Franklin, 1 Li. Rayrn. 646, and 1 Salk. 17, S. C.
    
      Pigman, for the appellee.
   Buchanan, J.

delivered the court’s opinion.

In the opinion of the court, an action may be supported against a deputy sheriff for malfeasance, not in his capacity of deputy sheriff, but as a wrong doer. If therefore the appellee in this case was guilty of a fraud in the sale and purchase of the negroes in question, which was a matter to be determined by the jury, the appellant is clearly entitled to recover on the couht in trover.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED;

Figman, for the appellant,

cited Cameron vs. Reynolds, Cowp. 403. Sanderson vs. Baker and Martin, 2 W. Blit;. Rep. 832, Mckworth vs. Kempe, Doug. 41, 42. Wood-gate vs. Knatchbrill, 2 T. R. 154. Chitty’s Plead. 73, 74. 6 Bac. Ab. tit. Trover, 677, 707. Rex. vs. Woodward,! Ld. Raym. 736. Ehins vs, Smith, Sir T. Raym. 336.

Taney, for the appellee,

relied on the same authorities he referred to at the first argument in this court.

Earle, J.

The court consider this to be the same a« the case formerly before them.

JUDGMENT AFETRMED.  