Webster v. Quimby

The action in this case is against the defendant for neglecting to make an attachment of property, and to return a writ entrusted to him for service : and the plaintiff claims damage in his declaration for neglect in both these respects. The claim of damage is a substantial allegation in cases of this description ; and whether the plaintiff has incurred damage or not, arises from the fact whether or not he had a subsisting debt on which his writ, placed in the hands of the officer, was founded.

In an action against a sheriff for false return on mesne process, it is holden that the declaration should state that the plaintiff had good cause of action against the defendant in the original suit, by stating that the defendant was indebted to him for money lent, goods sold, &c., and the plaintiff should prove such averment. Esp. N. P. C. 477, if notes. And this is required in all cases of default by the officer in the service of mesne process; and such evidence as would charge the defendant in the original suit, will he sufficient proof of the debt against the sheriff. Esp. N. P. C. 695; Peake’s do. 65.

In case of an action against the officer for permitting an escape on mesne process, it is holden that it must be stated and proved that the plaintiff had a cause of action against the party arrested. If this be not averred, the declaration is bad on demurrer; and if it be not proved as averred, the plaintiff will be nonsuited. 2 Lev. 85, Hunter vs. Clayton; 4 D. & E. 611, Alexander vs. McCanley; 2 Saund. 151, note 1; 5 Esp. 160, While vs. Jones; 1 Bos. & Pul. 281, Webb vs. Herne.

There seems to be no doubt upon this subject. If this *385point is essential, it should be made out by the usual mode of proof. There is no reason why it should form an exception to the general rule. The same testimony is required in recovering damage against the officer that would be necessary in prosecuting the claim against the original debtor.

In this instance, in attempting to prove the debt which existed against the original debtor, it appeared that the plaintiff’s claim was founded on three promissory notes, the signature to each of which was attested by a subscribing witness, who was not produced, and no excuse was given for his absence; and the only evidence offered of the debt was proof of the hand writing of the debtor. This would have been clearly inadmissible, under such circumstances, to sustain a claim against the debtor. 6 N. H. R. 561, Farnsworth vs. Briggs, and authorities there cited...

Without this testimony there was no legal evidence of the existence of a debt in favor of the plaintiff in the original action ; and until such a debt is proved, no claim of damage can be sustained against the defendant for not serving or returning what must, under such circumstances, be considered as a void writ. For this reason judgment must be for the defendant.

But the principal question designed to be raised in this case was, whether the officer received the writ under such circumstances as to render him liable in his capacity as an officer, or whether he received it merely as an agent, with such discretionary power as to relieve him from official liability.

The writ was enclosed to the officer in a letter, which was as follows :

“ Sir — Enclosed is a writ against Richard Chapman. All that is wished is, that you would try to get along in as easy a way for Chapman as you can. The debt Webster wishes to have secured. He don’t care about a continuance, but wishes security. Yours, &c.

*386We are all of opinion, that whether the officer was bound, under these instructions, to make service of the writ or not, tie was bound to make due return of it; and that his neglect to return the writ to the court or the plaintiff’s attorney, would have rendered him liable in nominal damages, had the other necessary facts been made out. But for the reason first mentioned, there being no proof of debt in the original suit, judgment must be upon the verdict for the defendant.

Judgment for the defendant.