13 Mass. 169 | Mass. | 1816
delivered the opinion of the Court. The question made in this case is, whether the plaintiff has not lost his right of action against the sheriff for the misfeasance of his deputy, because he did not make a demand of the bail-bond within a year after judgment against the principal. The position is attempted to be supported by analogy to the action against bail, which is limited to a year after judgment against the principal; and it is said no damage has been sustained, because, had there been a bail-bond, the plaintiff, by his negligence, would have lost his remedy upon it.
But this is taking for granted what may never have happened ; for it may be presumed, that the plaintiff knew that no bail had been taken, notwithstanding the return of the officer; and, with such knowledge, to have made the demand would have been but an idle ceremony. The wrong done was in making the false return ; and there is no limitation affecting an action for that wrong, but the general statute of limitations in personal actions. The limitation for a scire facias against bail, is a personal privilege to the bail: which cannot be transferred to an officer, who has neglected his duty.
Judgment according to the verdict.
