
    Bank of Rome vs. Curtiss, sheriff, &c.
    In an action against a sheriff for neglecting to levy and return an execution, it appearing that the defendants, or some of them, had sufficient property out of which he might have satisfied it; held, that he was liable prima facie for the whole amount due on the judgment, and it is no answer that the defendants are still able to pay.
    The sheriff may mitigate the damages in such an action, by showing that he was unable to collect by an exercise of proper dEgence, as, if the defendant in the execution was insolvent; or, he may show that the plaintiff himself was the cause why the whole was not collected.
    Case against the defendant, sheriff of Oneida, for neglecting to collect and réturn a fi. fa.; tried at the Oneida circuit, in October, 1840, before Gridley, C. Judge.
    No affidavit of merits having been filed, the cause was tried as an inquest; and on the trial, the plaintiffs proved, among other things, that on the 4th of January, 1838, a fi. fa. in their favor was delivered to one Blair, then deputy and under sheriff of the defendant, to be executed; the fi. fa. was issued out of this court on a judgment against Tucker, Dunham and Stephens, directing the sheriff to levy, &c. §661,43, with interest from 16th October, 1837, together with the fees, &c.; and was returnable on the 13th of January, 1838. The plaintiff also proved, that the execution had not been returned: that Dunham and Stephens, while the execution was in the officer’s hands, had personal property within the county, which might have been levied on, sufficient to satisfy it.
    The defendant proved, by a cross-examination of the plaintiffs’ witnesses, that, although Dunham had failed, Stephens was still abundantly able to pay the judgment and execution. And his counsel asked the judge to charge, that the plaintiffs could only recover such amount as they had lost by his neglect, and not the amount remaining due and "unpaid. The judge refused so to charge; and directed the jury that, although the defendants in the execution were still able to pay, the plaintiffs were entitled to recover the full amount of the execution, or so much thereof as remained unpaid. The defendant excepted. Verdict for the plaintiffs for $235, the amount claimed as unpaid. The defendant now moved for a new trial, on a bill of exceptions.
    
      Mattison & Crocker, for defendant.
    
      Stryker & Comstock, for plaintiffs.
   By the Court, Cowen, J.

I think the learned judge was right, in directing a verdict for the full amount of the unpaid sum endorsed on the, fi. fa. There were goods sufficient, in the hands of the defendants, or some of them, to satisfy it. Of these, the sheriff neglected to levy the amount, and unwarrantably delayed to return the ft. fa. For such neglect, especially in respect to final process, he is prima facie liable to pay the whole debt; and conclusively so, unless he can mitigate the amount, by showing that he 'was unable to collect by an exercise of proper diligence; as, if the defendant in the execution were insolvent, or the plaintiff himself have been the causé why the whole was not collected. The rule was thus laid down by Parker, J. in Weld v. Bartlett, (10 Mass. R. 474,) and we think, correctly. It was repeated and enforced in the subsequent case of Young v. Hosmer, (11 id. 89, 90,) to a greater extent, and with more severity, than is necessary to uphold the judge’s charge here. The same rule was adopted by this court, in an action against the surety for the jail limits. (Kellogg v. Munro, 9 John. R. 300, 302.) The books to this point are considered in Patterson v. Westervelt, (17 Wendell, 543,) where, substantially, the same rule wag adopted in. respect to an escape from mesne process. -

New trial denied.  