Starr v. Bennett — 5 Hill & Den. 303

Majority

p. 303

Starr and others vs. Bennett.

Headnote

A deputy sheriff who had returned a jl. fa. was enquired of by the plaintiff some months afterwards whether the return was in due form, of law, and the deputy, intending to deceive, answered that it was; whereupon the plaintiff filed a cred. itor’s bill against the defendant in thefi. fa., but lost the advantage thereof by reason of the return being insufficient. Held, on demurrer to a declaration stating these facts, that an action for deceit would not lie against the deputy, inasmuch as the enquiry made of him related merely to his opinion upon a question of law.

Even if the enquiry had been specifically directed to the words of the return, and the deputy had answered falsely, the action could not have been maintained; for the plaintiff had the means of attaining correct information completely within his reach, without resorting to the deputy. Per Bronson, J.

p. 304

Declaration, that the .plaintiffs, on the 28th of January, 1841, recovered a judgment in this court against Joseph Leslie for $544,28. That on the 2d of March, 1841, a fi. fa. was issued on the judgment to the sheriff of, Onondaga, returnable in sixty days, which was delivered to the defendant, then being a deputy of the sheriff of Onondaga. That on the 8th of May following, the defendant returned the execution to the clerk’s office with his return endorsed thereon as follows: “ Nulla bona, May 3d, 1841. F. Benson, shffi, D. S. Bennett, dep.” That Leslie, at the time of the return, and afterwards, was possessed of property and effects of various kinds sufficient to satisfy the judgment. That on the'5th of January, 1842, the plaintiffs, by their attorney, applied to the defendant and communicated to him their intention to file a creditor’s bill upon the return of the fi. fa., “ and made enquiries of the said defendant whether the said writ of fieri facias was returned, and whether the return was made in due form of law. And the said plaintiffs aver that the said defendant, then and there intending to deceive the said plaintiffs or their attorney, falsely represented that the said writ .of fieri facias was filed with a return thereon in due form of law: whereas, in truth and in fact, such reten was not in due form of law ; but was wholly insufficient,” &c. That the plaintiffs, confiding &c., filed a creditor’s bill against Leslie and got an injunction, and the debt would have been amply secured if the return had been in due form of law; but in consequence of the insufficiency of the return, the plaintiffs lost their lien by virtue of the creditor’s bill, and Leslié became wholly insolvent. By reason whereof the defendant became liable to pay the plaintiffs their damages &c.; but had not paid them. Demurrer and joinder.

J. Wilkinson, for the defendant.

J. G. Forbes, for the plaintiffs.

The plaintiffs have not given a name to this action; but I presume it was intended to be an ac

p. 305

iion on the case for deceit. The deputy made the usual re- ton-—nulla bona—on the execution; though in strictness he should have added, that Leslie had no lands, tenements or chattels real in the comity. The plaintiffs waited eight months, and then, instead of sending to the clerk’s office for a copy of the return, they went to the deputy to make enquiries, telling him they intended to file a creditor’s bill. They did not ask the deputy to inform them what particular retiirn he had made, but desired his opinion upon a question of law, to wit, “ whether the return was made in due form of law and the deputy answered that the “ fieri facias was filed, with a return thereon in due form of law.” For this deceit and falsehood the action is brought. It was admitted in Pasleij v. Freeman, (3 T. R. 51,) that no action would lie for a false or erroneous assertion concerning a mere matter of judgment or opinion. I have met with no case which holds a different doctrine, and am unwilling to make a precedent. If the plaintiffs wanted an opinion upon t-his question, they should have gone to some person learned in the law, and not to a deputy sheriff.

If the defendant had been questioned about a matter of fact, to wit, upon the words of the return, and had answered falsely, < I think no action could be maintained. The return was not ] only hi writing, but it was matter of record, which was open to -the inspection of every one, and the plaintiffs should have examined for themselves. In Bayly v. Merrel, (Cro. Jac. 386,) the plaintiff complained that he had killed seven of his horses in drawing a load of madder which weighed twenty-two hunched pounds, and which the defendant, who had employed the plaintiff to carry the load, had falsely and fraudulently affirmed was of the weight of only eight hundred pounds. After verdict for the plaintiff the judgment was arrested, because the weight •of the load was -not a matter peculiarly within the knowledge of the defendant, and the plaintiff had the means of correct information by weighing the goods. The court said it was gross negligence in the plaintiff not to weigh the goods. This case is also reported in 3 Bulst. 95. It was approved in Pasley v. Freeman, (3 T. R. 51,) where this action for deceit was carried

p. 306

to its . utmost limit. Ashhurst, J. said, the carrier had the means of attaining certain knowledge in his own power, by-weighing the goods; and. therefore it was a foolish credulity, against which the law would not relieve. Lord Kenyon took the same view of the question. It was distinguished from the case of a false , affirmation concerning the credit or solvency of . an individual, because there the party is seeking information which he can only acquire by consulting others. But here, taking the case in its most favorable aspect for the plaintiffs, they are suing for a false affirmation concerning the contents of a written instrument, and when that instrument was completely within their reach. There is no precedent for such an action, and I trust there' never will be. Men must give some > attention to their own business, instead of questioning their « .neighbors, and then suing them for deceit.

It is unnecessary to look' further into the declaration. Either of the grounds which have been mentioned is fatal to the action.

Judgment for the defendant.