
    Frink v. Scovel.
    In the Court below,
    David Frisk, Plaintiffs Solomon Scovkl, Defendant,
    
    A sheriff having served a writ of attachment, returned it to the house of the clerk, and the clerk not being at home, left it with his wife, informing her what it was; but it was not entered in the docket of the court ; by reason of which, the creditor could not obtain judgment, and lost a great part of his debt: Held, that the sheriff was not liablefor neglect of duty.
    TiTHIS Was an action on the case, charging:' the defendant with heglecf of duty, as a deputy^sherrff, relative to the re-tdrn of a writ of attachment, in the plaintiff’s favour; by means of which neglect, the plaintiff lost his debt.
    The general issue being pleaded, the jury returned the following special verdict : “ That the defendant being a she- “ riff’s deputy for the county of New-Loruion, did, as is “ alleged by the plantiff in bis declaration, receive, to servé “ and return, a writ of attachment, dated the 30th of Sep- “ témber, 1802, in favour of the plantiff, against Jós'hua “ Raymond, returnable to the city court, to be' hoiden ⅛ “ New-London, on the first Monday of November theft “ next : That he proceeded with said writ to attach, and did “ attach a Dumber of cattle, the property of said Raymond, “ and ⅝ every respect made legal service of said writ: That “ he did, in due time, before the sitting of said court, and by “ the hand of Thomas Knight, return said writ enclosed in a “ Wrapper, directed to Lyman Law. Esquire, clerk of the “ city court, in New-London, with directions to said Knight, “ if the said clerk Was not at home, to hand it to the wife of “ said clerk, and inform her, that there was a city court ‘• writ within the cover, for the next city court, from Solo- “ /non Scovel: That said Knight did hand it to the wife of said “ clerk, the clerk not being at home, and, in every respect “ complied with the directions of said Scovel; That said ci- “ ty court did sit on the first Monday of November, and -the « plantiff was in court to answer to said writ : That said writ “ was not before said court, nor to be found on the files of “ the court; of consequence, no judgment was obtained on « said writ : That the plantiff then sued out a second writ “ against said Raymond, returnable to the next city court to “ be holden in New-London, viz. on the first Monday of “December, 1802, by virtue of which writ, ha again had “ the property of said Raymond attached, and regular ser- “ vice and return made of said writ ; but that previous to “ the said first Monday of December, 1802, a commission “ of bankruptcy, under the statute of the United States, es- “ tablishing a uniform system of bankruptcy, was issued a* “ gainst said Raymond: That the plantiff, in consequence “ thereof, was stopped proceeding on said suit, and the pro- “ perty of said Raymond held by virtue of said writ, to res- “ pond the judgment to be obtained against said Raymond⅛ “ passed, with the other estate of said bankrupt, into the “ hands of said commissioners : That the plaintiff did then “ pursue his claim upon said bankrupt, by exhibiting the “ evidences of this same debt, for which he had, as before, “ sued said Raymond, to the commissioners on said bank- “ rupt’s estate : That he proved his said debt before the “ commissioners, and received his dividend on said bank- “ rupt’s estate.”
    Upon these facts, the Superior Court adjudged the law to be so, that the defendant was not guilty.
    
    
      Peters, (of Hebron) for the plaintiff in error.
    The act incorporating the city of New-London requires, that writs returnable to the city court, “ shall be returned to “ the clerk of said court, on or before the day of the sitting “ of said court, and before the first opening of said court.”  The special verdict finds, that this writ was returned to a different person, and was not entered in the docket of the court, by means of which the plantiff lost his debt. The defendant was gnilty of negligence in office, to the damage of the plantiff. The plantiff is, then, entitled to recover. The defendant, as deputy-sheriff, was not authorized by law, to entrust this writ to Thomas Knight. It was his duty to return it himself. At any rate, he took upon himself the risk of its being returned. He was an insurer of it, from the time it was served, till it reached the clerk’s office.
    The delivery of the writ to Mrs. Law was not a legal return. The records of our courts are not entrusted to women. Mrs. Taw was under no legal obligation to hand this writ over to the court. If the defendant in this case is not liable, no body is.
    Suppose this writ had been upon an indorsed note. The neglect to have it returned to the first court, would discharge the indorsor. The clerk of the court would not be liable, because it never came to his hands ; Knight would not be liable to the plaintiff, because the plaintiff never employed him, and did not know him in the business ; the attorney would not be liable, because no neglect could be imputed to him ; Mrs. Law would not be liable, because she was not bound to perform the service. The defendant, then, must be liable, or the plaintiff must be subjected to the loss of his security, without any fault of his own.
    It is no excuse to the defendant, that Knight could not find the clerk. The sheriff is not to return, that he cannot do execution ; and if he is prevented, by the default of those who are under him, he is liable to the party. By the law, by his oath, and by his fees, he is bound to make actual re-return.
    
      A. Spalding, for the defendant.
    If Knight did not make such a return as would be good, if made by the sheriff, then we admit, that the sheriff is liable. But we contend, that if the sheriff leaves his writ at the place*-where the return is to be made, it is sufficient. He need not hunt up the clerk. No law imposts such a duty upon him, nor would he be entitled to any compensation for performing it. Suppose the clerk, at the time this return was to be made, happened to be at New-Haven, disr charging his duty as member of the legislature : could the sheriff recover fees for pursuing him thither ? The special verdict does not find, that it was through any fault of the sheriff’, that the writ was not on the clerk's docket.
    
      
      
        Slat. 101, edit. 1706.
      
    
   By the Court,

unanimously,

The judgment was affirmed,  