1 Aik. 194 | Vt. | 1826
The opinion of the Court was delivered by
The questions that are raised upon this writ of error, seem comprised in the following, to wit:
1st. Whether the promise proved, corresponds with the one alleged in the declaration, or whether the turning out the property at so late a period of the execution, affects the question at all, and if so, how.
2d. Whether the writ of errror serves as an excuse for the defendant, for the neglect complained of.
3d. Whether assumpsit is the proper action to try the questions presented.
With regard to the first point, the legal import of the promise in the declaration, is, that the defendant would levy, collect, $*c. in the life of the execution; and the date of the promise alleged, would give him time enough to do it. The turning out property, when the execution had but three days to run, was at least a consent of Wheeler, that the deputy, Booth, should have fourteen days from that time, in which to perform his promise. The safer and better mode of declaring, would have been to frame a declaration with one or more counts, so as to meet this state of things, and avoid all questions of variance, as also of licence for neglect. The Court, however, attach too little importance to this point, to present any critical view oí the authorities.
Upon the second point, it may be observed, that according to the English authorities, a writ of error, though a supersedeas, does not stop the proceedings of an officer, after he has made his levy, or began his service. But that question does not arise here, for, if any liability of the officer is shown at all, it was complete long before the writ of error was served; and there is no pretence of any consent of Wheeler, that the sale should be delayed as it was, by the officer’s adjourning from time to
3d. The Court consider that assumpsit will not lie, in a case like the present. The deputy cannot make promises to bind the sheriff, unless it he to pay over money collected on execution, and then an action for tortious neglect may as well be brought. The liability of the sheriff for his deputy, is that which the law imposes, and is for the neglect of duties which the, law requires, not for the breach of promises which the deputy makes.
For this reason the judgment of the county court is re- * versed, and the Court proceed to render such a judgment as the county court ought to have rendered, which is, that Tomlinson recover of Wheeler his taxable costs in the original action, Wheeler against him, together with the costs of this writ of error.
