The opinion of the court was delivered by

The plaintiff avers in substance in his declaration that the defendant refused to serve a writ put into his hands, whereby he lost his debt.

The proof was that he offered him the writ, and requested him to serve it immediately, and he refused to serve it for reasons given, and did not take it into his hands. The court ruled that the proof fatally varied from the declaration, which was not amendable, for the sole reason that it would introduce a new cause of action. This, we think, was error. Section 21, c. 12, Gen. Sts., provides that “ any sheriff or deputy sheriff who shall wilfully neglect and refuse to serve or return any such writ or precept issuing from lawful authority and delivered to him to serve and l’eturn, . . . shall, on conviction, . . . pay a fine, . . . and shall pay to the party aggrieved by such neglect or refasal all damages thereby sustained, with costs-.” Section 20 makes it the duty of sheriffs to receive and execute and return all writs and precepts. The duty of an officer to serve legal process attaches when it is offered to him with the request to serve it — when it is put potentially within his control. The gravamen of the declaration is that it became the duty of the defendant, on the 5th day of May, 1875, to serve the writ, and that he refused to do it. It is not necessary in an action of tort-that the plaintiff should prove every point in *391his declaration. He must so far prove the cause of complaint, and the same cause, that a right of action accrues. Skinner v. Grant, 12 Vt. 456, 4624. The statute uses the word “ deliver ” in defining the duty of the officer. The pleader in this case uses the words, “put into his hands.” If a process is laid on the table before the sheriff and .he is instructed to serve it, it is delivered to him, and his duty to serve and return the process is fixed, unless he have some legal excuse. And, we think, under this declaration, that proof, that the writ was offered to him, and made subject to his control, and his attention called to the duty required of him, is proof that it was “ put into his hands.” A sheriff may be without hands, or otherwise disabled from the manual taking of a writ, and the process may be, from the necessity of the case, put into his hat or pocket, and in such case it is “ put into his hands ” and possession. In the form of declaration in trover, it is alleged that the plaintiff lost the goods which afterwards came into the hands and possession of the defendant. Yet proof that plaintiff owns the goods, and defendant has the actual or constructive possession, and refuses to surrender them, is sufficient to sustain the action. So in this case, the tender of the writ with the request to seiwe it, is sufficient proof, under this declaration, to raise a duty on the part of the defendant to perform the service.

II. The writ, we think, was clearly amendable, if amendment were required. The plaintiff claims damages for the loss of his debt occasioned by defendant’s refusal to serve the writ, and the plaintiff had no occasion to add more by way of amendment than that he “ offered and tendered the writ to the defendant ” instead of the words, “ put into his hands.” But this, as we have seen, in this case was unimportant.

Judgment reversed, and cause remanded.