Burk v. Campbell — 15 Johns. 456

Majority

p. 456

Burk against Campbell.

Headnote

An action on the case will lie against a sheriff for not returning an execution, or the party may proceed by attachment, at his election.

In an action on the case against a sheriff for not levying and returning a writ of fieri facias, a plea that the sheriff had never been ruled to return the writ is bad, for the sheriff is bound to return a writ without being ruled, and he cannot avail himself of his own neglect of duty to defeat the plaintiff’s, action,

IN ERROR to the court of common pleas of the county of Franklin.

This was an action of trespass on the case, brought in the court below, by the plaintiff in error, against the defendant in error, who was sheriff of the county of Franklin, for not executing or returning a writ of fierifacias. The declaration stated, that in the term of October, 1815, of the court below, the plaintiff obtained a judgment against one Whipple, for 55 dollars and 25 cents; that on the tenth of December, in the same year, he issued a fi.fa. to the defendant, returnable on the 28th of January then next, which was delivered to the defendant to be executed, and although there were goods and chattels, and lands and tenements, on which the defendant might have levied, yet he did not levy, nor did he ever return the xvrit.

The defendant pleaded that before the commencement of this suit, he was not required by any rule of the said court of common pleas, to return the writ, before the judges and

p. 457

assistant justices thereof, according to the course and practice of the said court.

To this plea there was a general demurrer: the defendant joined in demurrer, and the court below gave judgment for the defendant. The cause was submitted without argument.

delivered the opinion of the court. This case comes before the court on a writ of error to the Common Pleas of Franklin county. It was a special action on the case, against the defendant, as sheriff, for neglecting to levy and collect the amount of a certain fieri facias, issued out of the said court of Common Pleas, in favour of the plaintiff, against Nathaniel Whipple, according to the directions and exigency of the writ. The only plea interposed by the defendant was, that he had not been required, by any rule of court, to return the said writ, according to the course and practice of the court. To this plea there was a general demurrer, upon which the court gave judgment for the defendant.

The judgment was erroneous. There can be no doubt that an action will lie against a sheriff, for neglect of duty, in not returning an execution delivered to him. The declaration in the court below set forth, with all necessary certainty, the judgment and execution ; the delivery of the same to the sheriff, before the return day; and that the defendant in the execution had sufficient goods and chattels, lands and tenements, within the county, whereof the money, required by the execution to be raised, might have been levied and collected, but which the defendant neglected and refused to do. It is no answer for the sheriff to allege that he had not been ruled to return the execution. This he was bound to do, without being ruled. The plaintiff had his election to proceed either way; and the sheriff cannot avail himself of his own neglect of duty to defeat the plaintiff’s action. This is a principle fully recognized by this court in Hinman v. Breese, ( 13 Johns. Rep. 529 .) Our statute concerning sheriffs, recognizes such an action against the officer. It declares, that if any sheriff, or other officer, shall not make due return to any writ delivered to him to be executed, he shall not only be

p. 458

liable to attachment, or amercement, but, also, to an action on the case, for damages, at the suit of the party aggrieved. (1 N. R. L. 423.) The judgment of the court below must he reversed.

Judgment reversed.