Isham v. Eggleston

delivered the opinion of the Court. — This action was brought to recover damages for the neglect or default of the defendant, in his office of constable of Danly, in not executing and returning a writ of execution, delivered him, in favor of the plaintiff and against William Ilitt and Jonathan F. Barrett of 'Danby. The defendant, the day after he received the execution, delivered it over to a deputy sheriff, who returned it into the clerk’s office in due time, with a return thereon, that he had arrested Barrett and committed him to gaol, and had made dilligent search, but could find neither tho body or property of Ilitt within his precinct. Ilitt, at the time the execution was delivered to the defendant, resided in Danby, but had no ostensible property, either real or personal, to satisfy the execution ; and Barrett then confined in gaol, and was destitute of property. Proof was admitted on the part of the plaintiff, though objected to, that the defendant, a few days after he had delivered over the execution to the deputy sheriff, gave information to Ilitt that the execution had passed through his hands into the hands of the deputy sheriff. *275The defendant offered, but was not permitted, to shew, that at . ■ . . , ~ time he delivered over the execution, he assigned reasons lor so doing, and what, as the language of the exceptions is, the reasons assigned were ; and that the deputy sheriff had used the greatest diligence to arrest the body o^Hitt. The questions to be decided in the case, arise upon the rejection of the proof thus offered by the defendant; upon the admission of the testimony given on the part of the plaintiff and objected to by the defendant; and upon the instructions given to the jury, connected with the requests made to the court on the subject by the defendant’s counsel.

As the reasons for which the execution was delivered by the defendant over to the deputy sheriff are not stated in the exceptions, it does not appear that the evidence respecting them, which was offered by the defendant, was at all material; and unless it appears, affirmatively, to have been material, it must be taken to have been properly rejected. And the evidence that the deputy sheriff had been diligent in his endeavours to arrest Hitt, cannot-be considered material, so long as it appears from the exceptions that no negligence was imputed to him.

Whether the evidence given on the part of the plaintiff, that the defendant communicated to Hitt information that the execution was in the hands of the deputy sheriff, was admissible, and whether the court below was bound, in its directions to the jury, to comply with the requests madebythe defendant’s counsel, are questions involved in, and may be considered as depending upon, the inquiry, whether the instructions given to the jury were such as the law applicable to the ease required. The only request necessary or material to be noticed, is that by which the court was called upon to instruct the jury, that if the defendant delivered over the execution to the deputy sheriff, before he had opportunity to take the bodies or property of Hitt and Barrett, and the execution was faithfully executed and returned by the deputy sheriff, it was a sufficient defence to the action, whether the execution was returned satisfied or unsatisfied. The court instructed the jury, that it might not be a deifcnce, without a collection of the debt, or commitment of Hitt to gaol; and that if they believed that the fact of the execution being in the hands of the deputy sheriff was communicated by the defendant to Hitt, and that Hitt by reason of such information had avoided the deputy sheriff, the plaintiff was entitled to recover such damages as he had sustained in consequence of Hitt's avoidance of the execution, and thefailure to arrest his body upon it. These instructions, taken together, were adapted to the facts proved in the case, and shew the ground on which the cause was submitted to the jury. The latter clause of the instructions pre*276sents the point upon which the cause turned, and on which it must be taken that the jury found in favor of the plaintiff; and if the direction on this point was right, it follows, not only' that the evidence on which it was predicated was correctly admitted, but that the instruction which the defendant’s counsel requested to be given to the jury was properly refused. It is said that the direction to the jury was wrong, because the defendant had a right to deliver over the execution to the deputy sheriff 5 and the evidence of his giving information of the fact to Hitt, though it had the effect to enable Hitt to avoid the deputy sheriff and defeat the execution, would not support this action, which is a general action for not executing and returning the execution, but the matter if available to the plaintiff, should have been stated specially in his declaration.

It is true, that the gist of this action is the neglect or failure to execute the writ of execution, in the manner in which- it should have been executed; and it is quite immaterial by whom it was executed, provided every thing was done which the plaintiff was entitled to have done. Whether the defendant performed the service himself, or procured it to be done by another officer, to whom the execution was directed, would be of no importance; for if performed by any one in the manner required by law, and without prejudice to the plaintiff, it would be a complete answer to the action. But when a creditor delivers an execution to a particular officer, and he does not serve and return it, the creditor has a right to bring an action, and declare against him for not serving and returning the execution : and if the officer would excuse himself by shewing that he had delivered the execution over to another officer, who had returned it in due time, but unsatisfied, the creditor may shew, without any allegation to that effect in his declaration, that the execution failed of service, and he has sustained damage, by reason of the defendant’s not retaining the execution in his hands, or in consequence of some act or omission of duty in regard to it, for which he would have been liable if L 3 had retained it. The creditor has a right to look to the¡éfficer to whom he has committed the execution, either for the money which may have been collected upon it, or for any damage whieh may have accrued to him from negligence in the service or return of it; and he is not bound to anticipate, in his declaration, the fact of the execution being delivered over to another officer, with whom he never entrusted it, or the doings of such officer upon it. If this is brought in as a defence to the action, the creditor may shew any loss he has sustained in consequence of the execution being thus delivered over to an officer to whom he never gave any authority *277over it, by way of obviating the defence set up. In the present case, the plaintiff had a right to shew, that the defendant, after he had delivered the execution over to the deputy sheriff, informed 1Hit of the fact; and if the information so given by the defendant to Hitt, was the cause of Hitt’s avoiding the deputy sheriff, and of the execution being returned non est inventus as to him, the plaintiff was entitled to recover, and the jury were properly directed to give such damages as he had sustained in consequence of it. If the execution had been served upon Hitt as well as Barrett, the plaintiff would have had no ground of complaint. But it was returned without service upon Hitt; and if this was occasioned by the defendant’s putting|the execution out of his hands into the hands of the deputy sheriff, arid giving information of it to Hitt, it was an injury to the plaintiff for which he ought to have a remedy. Where an officer sends notice to a debtor against whom he has an execution, to give him an opportunity to avoid him, and then returns non est inventus, he is liable for a false return. (Bekford vs. Montague, 2 Esp. Cas. 476.) The injury to thé creditor is certainly no less, where an officer, who has received an' execution, without the consent of the creditor, delivers it over to another officer, and then gives information of it to the debtor, who in consequence of the information avoids the execution. Such a practice cannot be tolerated, and the creditor in such case may recover against the officer, to whom he has delivered the execction, his just damages, in an action for not serving and returning the execution.

Judgment affirmed.