DANIEL SOUTH, JOHN W. STOUFFER, JACOB FIERY, DANIEL MIDDLEKAUFF, SENIOR, AND JOHN A. K. BREWER, PLAINTIFFS IN ERROR,

v.

THE STATE OF MARYLAND, USE OF JONATHAN W. POTTLE

Mr. Justice GRIER,

delivered the opinion* of the court.

In this case a verdict was rendered for the plaintiff in the court below, and the defendant moved, in arrest of judgment, “ that the matters set out in the declaration of the plaintiff are not sufficient, in law, to support the action.” If if be found that the court erred in overruling this motion and in éntering judgment on the verdict, a consideration of the other points raised on the trial will be'unnecessary.

The action is brought on the official bond of South, as sheriff of Washington county. The declaration sets forth the condition of the bond at length. The breach alleged is, in substance, “that while Pottle was engaged about his lawful business, certain evil-disposed persons came about him, hindered and prevented him, threatened his life, with force of arms demanded of him a large sum of money, and imprisoned and detained him for thé space of four days, and until he paid them the sum of $2,500 for his enlargement.”

That South, the sheriff, being present, the' plaintiff, Pottle, ap-_ plied to him for protection, and requested him to keep the peace-•of the State of Maryland, he, the said sheriff, having power and authority so to do. That the sheriff neglected and refused to protect arid defend the. plaintiff, and to keep the peace, wherefore, it is charged, “ the sheriff did not well and truly execute and perform the duties required of him by the laws of said State; ” and thereby the said writing obligatory became forfeited, and action accrued to the plaintiff.

This declaration does not charge the sheriff with a breach of his duty in the execution of any writ or process in which Pottle, the real plaintiff in .this case, was personally interested, but a neglect or refusal to preserve the public peáce, in consequence of which the plaintiff suffered great wrong and injury from the unlawful-violence of a mob. It assumes as a postulate, that every breach or neglect of a public duty subjects the officer to a civil suit by any individual who, in consequence thereof, has suffered loss or injury; and consequently, that-the sheriff and his sureties' are liable to this suit on his bond, because he has not “ executed and performed all the duties required of arid imposed on him by the laws of the State.”

• The' powers and duties of the sheriff are usually arranged under four distinct classes

1. In his judicial capacity,, he formerly held the sheriff’s tourn, or County courts, and performed other functions which need not be enumerated. 2. As king’s bailiff, he seized to the king’s use all escheats, forfeitures, waifs, wrecks, estrays, &c.

3. As conservator of the peace in his county or Bailiwick, he is the representative-of the king, or sovereign power of the State for that purpose.. • He has the care of the county, and, though forbidden by magna charla to act as a justice of. the peace in trial of criminal cases, he exercises all the authority of that office where the public peace was concerned. He may upon view, without writ or process, commit to prison all persons who break the peace or attempt to break it; he may award process of the peace, and bind any one in recognizance to keep it. He is bound, ex officio, to pursue and take all traitors, murderers, felons, and other.misdoers, and commit them to jail for safe'c'ustody. For these purposes he may command the posse comitatus or power of the country; and this summons, every one over the age of fifteen years is bound to .obey, under pain of fine andimprisonment.

4. In his ministerial capacity he is bound to execute all processes issuing from the courts of justice. He is keeper of the county jail, and answerablé for the safe-keeping of prisoners. He summons and returns juries, arrests, imprisons, and executes the sentence, of the court, &c. &c. 1 Black. Com. 343; 2 Hawk, P. C. C. 8, § 4, &c. &c.

Originally, the office of sheriff could bé held by none but men of large estate, who were able to support the retinue of followers which the dignity of his office required, and to answer in damages to those who were injured by his neglect of duty in the performance of his ministerial functions. In more modern times, a bond with sureties supplies the place of personal wealth. The. object of these, bonds .is security, not the imposition of liabilities upon the sheriff to which he was not subject at common law. The specific enumeration of duties in the bond in this case includes none'but those that aré classed as ministerial. The general expression, in conclusion, should be construed to include only such other duties of the same kind as were not specially enumerated. To entitle a citizen to sue on this bond to his own use; he must show such a default as would entitle him to -recpver against the sheriff in an action on the case. . When the sheriff is punishable by indictment as for a misdemeanor, in cases' of a breach of some public duty, his sureties are not bound to suffer in his place, or to indemnify individuals for the consequences of such a criminal neglect...

It is an undisputed principle of the common law, that for a breach of a public duty, an oificer is punishable by indictment; but where -he acts ministerially, and is bound to rénder certain services to individuals, for a compensation in fees or salary, he is liable for acts of misfeasance ór non-feasance to the party who is injured by them.

The powers and duties of conservator of the peace exercised by the sheriff are not strictly judicial; but he may be said to act as the chief magistrate of his county, wielding the executive power for the preservation of the public peace. It is a public duty,-for neglect of which he is amenable to the public,'and, punishable by indictment only.

The history of the law for centuries proves this to be the case. Actions against the sheriff for a breach of his ministerial duties in the execution of process are to be found in almost every book of reports. But no instance can be found where, a civil action has been-sustained against him for his default or misbehavior as conservator of the peace, by those-who have suffered injury tó their property or persons through the violence of mobs, riots, or insurrections...

In the case of Entick v. Carrington, State Trials, vol. 19, page 1062, Lord Camden remarks : “ No man ever .heard of an action against a conservator of the.peace, .as such.”

The case of Ashby v. White, 2 Lord Raym. 938, has been' often quoted to show that a-sheriff may be liable to á civil action where he has acted in a' judicial, rather than a ministerial capacity. : This was-an action brought by a citizen entitled to vote' for member of parliament, against the sheriff for refusing his vote at an election. Gould, justice, thought the «action would-not he, because' the sheriff acted as a judge. Powis, because, though not strictly a judge, he acted' qudsi judicially. But Holt, C. J.,' decided that the action would lie: 1. “ Because the'plaintiff had a right or privilege. ' 2. That, by the act of'the officer, he was hindered from the enjoyment of it.’? 3. By. the finding of the jury the act was done maliciously. ' Thé later cases all concur in the. doctrine', that where the officer is held liable-tó a civil action fqr-acts-not'simply ministerial, the plaintiff must allege and "prove each óf these'propositions. See Cullen v. Morris, 2 Starkie, N. P. C.; Harman v. Tappenden, 1 East, 555, &c. &c.

The declaration in the case before us .is clearly not within the principles of these decisions.- It1 alleges no special individual right,.privilege, or franchise, ip the plaintiff* from’the enjoyment of which he has been restrained or hindered'by the maficious act. of'the sheriff; nor does it charge him with any misfeasance or non-feasance in his ministerial capacity, in the execution of any process in which the plaintiff was concerned;. ' Consequently, we are" .of opinion that the declaration, sets forth no sufficient cause of action;- 1 / -

The judgment of the circuit’ court is therefore' reversed.