
    Ledyard v. Jones.
    In an action against a sheriff, for neglect of duty in not levying and returning an execution, the plaintiff is prima facie entitled to recover the amount of the judgment, with interest. But it may be shown by the sheriff, in mitigation of damages, that the whole sum, could not have been collected by due diligence on his part
    Jt is no answer to such an action to show that the defendant in the execution still has abundant property, out of which the judgment may he collected.
    
      The plaintiff delivered an execution to the defendant, a sheriff, upon a judgment against one A. The sheriff neglected to make a levy, nor did he return the execution at the time limited, but he subsequently made a false return, viz., that the execution was superseded-by a writ of error. In an action against the sheriff, for neglect of duty, held, that the true measure of damages was the amount of the judgment, with interest, it being admitted that the judgment debtor had sufficient property out of which the execution might have been collected.
    (Before Duek, Mason, and Campbell, J. J.)
    May 14, 15 ;
    June 22, 1850.
    This was an action of trespass upon the case, brought in the supreme court, against the defendant, the late sheriff of the city and county of New York, to recover damages for not levying, and for making a false return of an execution, issued out of this court, upon a judgment in favor of the plaintiff against Jacob Acker. The declaration contained several counts, averring the neglect to levy, the non-return of the writ at the expiration of the 60 days limited thereby, and that, subsequent to the return day, the defendant had falsely returned that it had been superseded by a writ of error. The plea was the general issue.
    The cause came on for trial before the Hon. Selah B. Strong, one of the justices of the supreme court, and a jury, on the 11th day of February, 1848. Upon the trial, it appeared in evidence that on the 11th of June, 1844,- the plaintiff recovered a judgment in the superior court of the city of New York against Jacob Acker, the former sheriff, for the sum o.f $588.58. On the 24th October, 1844, a fi. fa. was issued upon the judgment and delivered to the defendant, then sheriff, by whom it was subsequently returned on the 20th of May, 1845, with this indorsement “ superseded ly writ of error.” On the 5th of April preceding, a writ of error, with an order staying proceedings upon the execution, was granted by one of the circuit judges, and notice thereof given to the attorney of the plaintiff. The sureties in the bond upon the writ of error having been excepted to, and having failed to justify within the proper time, the writ of error was superseded by an order of the judge, granted on the 15th of May, and notice of the supersedeas was served on the attorney for the plaintiff in error. Prior to this, however, and on the 10th of May, notice was served upon the attorney for the defendant in error, (the plaintiff in this suit,) that a new bond had been filed, and that the sureties thereto would justify, on the 17th May, before Judge Edmonds. In consequence of the filing of this new bond, an order was granted staying the proceedings of the defendant in error, and on the 4th June following, the supreme court granted a motion to vacate the supersedeas, which had been granted, restoring the writ of error, and at the same time allowing the sufficiency of the justification of the sureties. It appeared by the evidence of the attorney who recovered the judgment for the plaintiff against Acker, that he called on the sheriff a number of times subsequent to the return day of the execution, and that the sheriff said that he had done nothing on the execution, and had not attempted to do any 'thing. It was admitted that Acker, the defendant in the judgment, had personal property and real estate in the city of New York, out of either of which the execution might have been collected, and upon which real estate the judgment was a lien.
    The plaintiff rested his case, and the defendant’s counsel moved for a nonsuit, on the grounds, that although it might have been shown there was neglect on the part of the defendant, yet no damage had been proved by the plaintiff, and it was a case of damnum absque injuria; that the allegation of a false return was unsupported, the return made being true; and that even if a technical breach of duty had been shown, it did not appear that the plaintiff had sustained any damage. The motion was denied, and the counsel.for defendant excepted. The defendant’s counsel then read in evidence the writ of error and transcript and return, in the suit of the plaintiff against Acker.
    The court charged the jury, that the defendant was bound in law to levy during the time limited by the fi. fa., if the defendant had property; and it being admitted that he had both real and personal estate, and there being nothing to restrain him from proceeding, he should have made the levy, and for his neglect- to do so, was liable; also, that in not making a return to the fi. fa., within the tiine limited, he was guilty of negligence, and for this he was liable. That, as to the damages, the plaintiff was entitled to recover the real damages she had sustained; and the action being.against a public officer, the jury was entitled to take a liberal view of them, and award liberal damages. To which charge the defendant’s counsel excepted,'and requested the Court to charge that the plaintiff was entitled to recover no more than her actual damage. The judge declined to charge further than he had already done' on that point. The defendant’s counsel further requested the court to charge that, under the evidence, the plaintiff was only entitled to nominal damages, and that the only damage to which a party is entitled for the nonpayment of money due is'the interest upon such amount, and .that this rule was applicable.here. The judge refused so to charge, and directed the jury that theymight draw their own inference as to the damages, but must not go out of the facts of the case to do so. To which charge defendant’s counsel excepted.
    The jury found a verdict for the plaintiff for $200 damages and six cents costs, and the defendant moved for a. new trial in this court, to which the cause was transferred.
    
      G. R. J. Bowdoin, for the plaintiff.
    
      N. B. Blunt, for the defendant.
   By the Court.

Mason, J.

The plaintiff was clearly entitled to recover on the fifth,- sixth, eleventh, and twelfth counts. The defendant did not make a levy under the execution, nor did he return the execution at the expiration of the sixty days, and the return, when made, was a false return; for he returned that the execution was superseded by a writ of error, when in fact such writ of error was not issued until nearly five months after the return day of the execution.

The only question, therefore, is the amount of damages, and upon that point the cases of The Bank of Rome v. Curtis, (1 Hill, 275,) and Pardee v. Robertson, (6 Hill, 552,) seem to us decisive. It was held in those cases, that in an.action under the statute against the sheriff for not duly executing and returning an execution delivered to him, (2 R. S. 440, § 77,) the debt due from the defendant in the original suit is prima fade the true measure of damages, but that the sheriff is at liberty to mitigate the amount by showing that the whole sum could not have been been. collected by due diligence on his part. The same rule had been adopted in respect to an escape from,mesne process, in Patterson v. Westervelt, (17 Wend. 543,) which appears to have been well considered; and in an action against a surety for the jail limits, (Kellogg v. Monro, 9 John. 300.) It is also in conformity with the rule adopted by the courts in Massachusetts, (Weld v. Bartlett, 10 Mass. 474,) and in Vermont, (Hall v. Brodis, 8 Verm. 485,) and in Alabama and Kentucky the. same rule is given by statute.

The case of Stevens v. Rowe (3 Denio, 327) has been urged upon the court as establishing a different doctrine, and as in fact overruling the previous decisions on this subject. . That, was an action on the case against a sheriff. The first count in the declaration alleged, that the defendant levied and made the amount, mentioned in the execution, of the personal property of the defendant therein, but that the sheriff had not the money so levied, or any part thereof, a,t the return day, and that he had not paid, the same to the plaintiff, noi had he the .writ at the return day, or at any time .since. The second count averred that. the defendants in the execution had goods and chattels, whereof the sheriff might have made the money, but that he did not levy the money, or at the return day make return of the writ. On the trial, the plaintiff introduced proof to show that the defendants in the execution had personal property out of which the debt might have been levied and' paid, and the defendant offered evidence to .the contrary. The jury found that only,$17.82 cents could have been made out of the personal property,, and gave a verdict for that amount in favor of the plaintiff; and the verdict was sustained by the court. Th¿ plaintiff also offered to show, that the defendant in the execution had real estate out of which the money might have been made, but the judge excluded the evidence on the ground that there was no allegation to that effect in the declaration j and his ruling was confirmed. So that the decision of this case was not contrary to the prior decisions of the supreme court, but in so far as it related to the rule of damages, was entirely in accordance with them. For the court distiúctly held, that prima facie the sum to be recovered was the full amount of the execution, but that the defendant might reduce that amount by showing that the money could not have been collected; and the amount was in fact reduced to the sum which the jury found might have been collected. The case, therefore, is a direct authority for the position that the sheriff is liable for whatever amount he might have obtained under the process. It is true that Judge Beardsley, who delivered an opinion in the case, controverts the doctrine of the previous decisions, and maintains that the defendant may mitigate the amount to be recovered against him, not only .by showing his inability to collect the money, but by proof that the debt is still safe and collectible. If this be so, it will be impossible, in the great majority of cases, to recover any damages from a sheriff, for not executing and returning process' delivered to him. He will have one of two answers always ready; either that the defendant in the execution had no property out of which the money could have been raised, and which, if established, it is admitted would be a sufficient defence ; or, that the defendant had property abundantly sufficient to pay the debt, and therefore the plaintiff had sustained no real damage. The mere statement of the proposition seems to' carry its own refutation along with it. The statute expressly gives to a plaintiff, a right to recover damages against a sheriff who neglects to execute and return process delivered to him, and a construction which leaves to the plaintiff more than nominal damages, upon the express admission by the defendant that he had neglected his duty, and that he might have collected the debt, for the very reason he might have collected it, and might still do so, cannot be the true one.

The doctrine, however, if good as to one execution is good as' to any number of successive executions issued on the same judgment. Whether the sheriff made no return, or made a false return, the ability of the judgment debtor ultimately to respond is a sufficient answer to any attempt by the creditor to recover damages against the sheriff.

It proceeds also, on the assumption that a new execution would certainly bring the money if due diligence were used. But many events may happen to defeat the collection. The judgment debtor may fail before a new execution is issued, and his personal property may go into the' hands of assignees, and the debt or execution be postponed to other debts, so as to be either entirely or partially lost; or the debtor may die, and the preference which had been gained by the execution lost by the intervention of other debts entitled to priority of payment in the course of administration.

With regard to real estate, such are its fluctuations in value, that the same piece of property which, when the first execution was issued, might have brought the whole amount of the plaintiff’s debt, may not on a subsequent occasion produce a tithe of it.

It was contended, however, that the judge should have charged as requested, that if plaintiff was entitled to more than nominal damages, it could only be the interest on the debt, that being the damage to which a party is entitled for the nonpayment of money when due. But if the debt itself is safe, so it is to be presumed is the interest, and the plaintiff would be entitled to recover interest, as well as principal, on a new execution. The same reasoning applies to the interest, as well as the principal, and the only damage, on this theory, which could bp sustained, would be for interest on the interest for that he could not recover by a new execution.

By refusing, therefore, to allow the plaintiff to recover from the sheriff the full amount of his debt, when it might have been collected had due diligence been used, the court withhold from him damages presently sustained, upon a speculation that perhaps he may realize the amount upon a fresh execution. Such a rule of damages has not yet been adopted in any case in this state. It was not adopted in Stevens v. Rose. The opinion given in that case,apparently sustains it,.but it is manifestly fhe individual, opinion of Justice Beardsley, and not that of the court. We prefer to adhere to the opinion in the Bank of Rome v. Curtiss, and in Pardee v. Robertson, as laying down the correct rule on this subject.

. Whether the sheriff cttn have recourse to the defendant, for whose debt he may have thus made himselfdiable, and can collect the amount from him, or can in any way be substituted in the place of the judgment creditor, are questionsmot now before us,'and on. which we therefore, express no opinion.

The result at which we have arrived then, is, that the plaintiff might have recovered against the sheriff, in -this suit,, the full amount of her claim against Acker., The jury found, .under the direction of the judge, two hundred'dollars — much less than the amount due the- plaintiff. Although .the charge was incorrect on this point, yet.it was- more favorable for the.defendant than it ought to have been, and he has no right to eomplain, and as the plaintiff is satisfied, it is not our province to enlarge it.

The motion for a new trial must be denied.  