
    Walbridge and others vs. Griswold.
    
      AssumpAt wiJI not lie against a Sheriff, or other officer, for a misfeasance oi hod* feasance in the execution ofhis official duties,
    THIS was an action against the defendant as Constable of the town of Enosburgh, for not making a return of a writ of attachment. The declaration states, in substance, that the plaintiffs heretofore, to wit, on the 28th day of June, 1811, prayed out a writ cf attachment in their favour against Stephen House of Enosburgh, dated the day and year last aforesaid, duly signed and directed to the Sheriff or either Constable of Enosburgh to serve and return, and made returnable to the County Court then next to be holden at St. Albans. And afterwards, to wit, on the 14th day of August, 1811 at Enosburgh, delivered said writ to the defendant, who then, and for a long time afterwards was legal Constable of Enosburgh, to serve and' return according to law. And the defendant so being Constable as aforesaid, and having received said writ, did on the same day and year last aforesaid, at Enosburgh aforesaid, undertake, and then and there, to the plaintiffs faithfully promise to serve and return said writ according to law and the directions therein given. Yet the defendant, not regarding his said promise and undertaking so by him made as aforesaid, nor the duties of Ins office ........ ,-a- ■ as Constable as aforesaid, but, intending to defraud the plaintms m that behalf, did not serve and return said writ of attachment at the return day thereof*, or at any day before- or since; but intending to defraud the plaintiffs in "that behalf, wholly neglected and refused, whereby the plaintiffs have wholly lost their said debt, &c.
    The defendant pleaded in bar.
    To the plea there was a demurrer and joinder.
    
      Wetmore and Smedley, for the plaintiffs.
    
      Swift, for the defendant.
   Chipman, Ch. J.

delivered the opion of the Court. The plea of the defendant in this case is so manifestly insufficient, that it is unnecessary to make any observations respecting it. The case must be decided on the sufficiency of the declaration. And the question is, whether this declaration can be supported, either on the statute, or at common law. It does not purport to be a declaration on the statute, neither will the statute support a declaration in assumpsit. The remedy given by the statute is where the officer shall wilfully refuse or neglect to serve, or shall wilfully neglect to return a writ, or shall make a false or undue return. And he is made liable to pay to the party aggrieved all damages which he shall have sustained by reason of such neglect or refusal; to be recovered in an action on the statute. And he is also, on conviction, made liable to a fine not exceeding one hundred dollars.

In an action on the statute the neglect or refusal must be expressly charged to have been wilful. The omission of the word wilful cannot be supplied by any circumlocution.

But there maybe a degree of negligence less than wilful, or which could not be deemed Vilful, and for which an action on the case at common law is the proper remedy. Between such case, and the cases embraced by the statute, there will be found a distinction very analogous to the distinction between a voluntary and negligent escape. The action on the case is for a nonfeasance, and an action of assumpsit will not lie. The case from 2 Wilson, 235 — Russel v. Palmer, which has been cited at the bar, has no analogy to the case before the Court. That is a declaration against an Attorney? whose undertaking is voluntary, for a neglect of the duty of his employment, in which he had engaged. Assumpsit is the proper and established form of action in such case. But it is believed that this is the first attempt to declare in assumpsit against an officer in a c?selike the present. The action does not arise exconfractu, or 1ua^ excontractu, but exdelicto. Jt arises from the neglect of an official duty in the pfficer — a duty which the law has enjoined upon him, for the due administration of justice. The breach of this duty, when an injury to an individual, is a species of wrong for which an action on the case is the only proper remedy.

It has been said that an action of assumpsit in this case is as properas an action of debt for an escape, which supposes a contract. But the action of debt for an escape does not lie at common law — it was given by statute — 1 Ed. 2 — or rather, as it has been generally Jiolden, by the equity of the statute of Westminster, 2. The debt lost through the neglect of the officer, is given against him to the patty aggrieved, by way of penalty; and it belongs to that class of actions. It lies not however for escape on mesne process, hut of one in execution. The action of debt is not given by our statute, and it does not seem consistent with its provisions to permit it.

Upon a full consideration of this case, the Court are clearly of opinion that this declaration in assumpsit cannot be supported.— There must therefore be

Judgment for the defendant.  