The opinion of the court was delivered by
This is not so much a case of importance on account of the sum depending on the opinion of the court, as it is in principle, involving the responsibility of the sheriffs of the state. The law supposes that one who undertakes any office or employment, trust or duty, either of a public or private nature, contracts with those who employ him or entrust him to perform it with integrity, diligence and skill; and if by his want of either of those qualities, any injury accrues' to individuals, they have therefore their remedy in damages, by a special action on the
Having laid down these few general out lines respecting the nature and duty of the office of sheriff, I shall proceed to consider the principles of the case under consideration. In this case then, it appears that two executions were taken out and lodged in the office at the same time, viz. a fi. fa. and a ca. sa., with orders from the plaintiff’s attorney to proceed on the fi. fa, in the first instance. Formerly these two executions could not be taken out at the same time against the defendant, for lord chief baron Gilbert lays it down in his law of executions, p. 71, that the capias is instead of the fieri facias, and if the fieri, facias issues first, no capias ought to issue, because the debt may be satisfied by the fieri facias and then he ought not to have a pledge in his hands from whence he is to have other satisfaction. .haw of Executions', 71, for this in fact would be putting it in the plaintiff’s power to obtain double satisfaction. But in process of time, the courts permited the plaintiff, for his own security, to take out two writs, the fi. fa. and the ca. sa. at the same time, but permitted him to execute but one of them. 8 Modern, 302. He is bound to make his election, for where a plaintiff proceeded on both at the same time, both were quashed and set aside. 1. Camp, 334; 1. Vesey, 194; Borne's notes, 198. Now in the present case, it appears that the plaintiff’s attorney, when he lodged the executions in the office, did make his election, by giving orders to the sheriff to proceed on the fi. fa. and further, that the sheriff did promptly and without delay proceed upon this fi. fa. by making a levy onthe defendant’s goods in his store, for the purpose of satisfying that execution. It is true that the goods levied upon did not pay off all the demands against .the defendant, but the sheriff appropriated the proceeds to the-, satisfaction of prior executions, as by the Law he was bound
The next point for consideration is, whether the sheriff can be made responsible for a debt under the foregoing circumstances, and also to what extent he is responsible. If the sheriff can be made responsible in this case, it must be for nonfeasance. .He has not been charged with any escape or false return or any thing else that will amount in law to a misfeasance. As to his ' conduct in executing the fi. fa. which he had orders first to proceed upon, he is not chargeable with any omission or neglect of duty in executing that process; it is not even alleged by the plaintiffs themselves, that he had been guilty of neglect;, for it appears that he obeyed the mandate of the fi'. fa. promptly and' without delay, by making a levy on the goods of the defendant’s store; and the bailiff, Bonner, proved that this levy was made on the goods in the store before any orders were given to proceed upon the ca. sa. so that it is very evident he was not guilty of any neglect in proceeding on the fi. fa. agreeably t<>
The next branch of this second division of the subject is, admitting for argument sake, that the sheriff could be made liable for not arresting the defendant on the ca. sa. to what extent is he liable? Upon this point the law is clear, that if a sheriff does not execute a writ lawfully delivered to him or makes a false return or suffers a prisoner to escape, he is liable to an action for damages, to be assessed by a jury; or if after judgment, a- gaoler or sheriff permits a debtor to escape, the debt becomes his own, as laid down in 3 Blackstone 165, and he is liable .for the whole debt. In estimating or assessing these damages however by a jury, in the case of Bonafous, vs. Walker, it is laid down that the party who suffers by an escape or false return, shall have the same remedy against the gaoler or sheriff, which he could have had against the original debtor; 2 Term Rep. 132. and Buller, in his opinion in that case, says that the party who suffers by an escape, shall have the same remedy against the gaoler, as against the debtor, but he cannot recover more than he could have recovered against the original debtor. Grose, J, That in an action for an escape, the jury,are
A third ground taken again the sheriff was, that the bailiff said the money should be fortli-coming. This was the declaration of the bailiff, and not one of his acts on behalf of his. principal, the sheriff, .and I know of no law which says the sheriff shall be liable for the words of a bailiff, further than us they are evidence of some act done by him in the line of his duty; now this declaration was not evincive of any act done by the bailiff', only that the money should be forth-coming. Make the most of it and it cannot amount to more than a promise on the part of the bailiff, that the money should be forth-coining. This might be construed into a promise on his part to bind him. but it cannot bind the sheriff. If he had said, he had received the money or that he had effects in his hands from which tlj.e-
We concur in this opinion on the ground that the sheriff was required to have the body at the return of the writ, and as the defendant died before that time, the sheriff was exonerated.