37 Cal. 522 | Cal. | 1869
We do not see how plaintiff can justly claim that the damages accruing upon what he claims to be his first count (admitting that there are two counts) are fixed by the admitted allegations of the complaint. The gravamen of the action is the failure to return an execution within the priscribed time. It is averred that the money has been collected, and that the defendant (the Sheriff) has failed to return the execution; hut it is nowhere alleged that defendant has not paid over to plaintiff the money collected. Moneys collected on execution are usually paid over by the officer before the return of the writ, and the fact of such payment constitutes a part of the return. In this instance the money, for aught that appears, may have been paid to the plaintiff, notwithstanding the fact that the writ has not been returned. We cannot assume that it has not been paid without any averment on the point. If paid, the amount collected and paid over cannot be the measure of damages for a subsequent failure to return the writ merely.
The judgment is affirmed.
