
    Bacon v. Fitch.
    ActioN for a nonfeasance in the office of sheriff. The •declaration was ■— That the defendant received of the plaintiff, a certain writ of execution, which issued upon a judgment of the Court of Common Pleas in the county of Litch-field, in favor of the plaintiff, against one Isaac; which execution bore date the 12th day of November, 1776, and was made returnable in sixty days: That the defendant received the same as sheriff, to execute according to law; which he wholly neglected to do, etc.
    Plea.- — • That the defendant received said execution, to conduct in the most advantageous manner for the plaintiff, and with as little expense to him as possible: That he was not to levy on the body of said Isaacs without particular orders from the plaintiff; and that Isaacs was, soon after, by order of the general assembly of this state, sent out of the defendant’s bailiwick, and prohibited from returning, till about the month of January, 1778; and that it was not in the pover of the defendant to have levied said execution, either on the body or property of Isaacs, until the return day had expired: That the plaintiff then gave orders to the defendant to receive continental currency in satisfaction, which he some time after did, and gave immediate notice thereof to the plaintiff, and indorsed the execution satisfied, and returned it to the office from whence it issued: That the plaintiff did not apply to receive said money, and the defendant afterwards tendered the same to him, which he refused to accept.
    To this plea there was a demurrer, and joinder in de>-murrer.
    
      Under the demurrer, it was objected — Tbat tbe plea did not set forth with sufficient certainty, tbe terms on wbicb tbe defendant received tbe execution; and tbat it contained no positive averment tbat estate could not be found before tbe return day, or any sufficient reason shown why return was not made; for tbe removal of tbe debtor’s person out of tbe defendant’s bailiwick, could not operate to prevent tbe debtor’s estate from being taken in execution: Tbat tbe subsequent orders of Bacon, for tbe defendant to receive continental bills, did not purge tbe antecedent wrong; for tbat, from tbe allegations in tbe plea, no more could be inferred, than, tbat Bacon agreed to accept continental money, if immediately collected; but tbat, by tbe averment of some time after, it did not appear when tbe money was collected, whether within a reasonable time or not: Tbat by tbe statute of this state, tbe damages wbicb may be recovered against an officer, for negligence in bis office, are uncertain; and therefore a tender is no good plea in such case.
    Plea adjudged sufficient.
   By the whole Court.

It appears by tbe plea — Tbat tbe defendant received tbe execution under certain restrictions, to conduct in tbe most advantageous manner for tbe plaintiff, and with as little expense to him as possible; and tbat be bad no opportunity to levy on tbe person or estate of tbe debtor, till after tbe return day was past. If be. bad returned tbe execution, with a non est inventus indorsed, it would have occasioned useless expense to tbe plaintiff, and would have been contrary to bis instructions; — therefore, we think tbat a sufficient excuse for not doing it.— Tbe other matters alleged in tbe plea, are expressive of what was tbe further understanding of tbe parties, respecting tbe terms on wbicb tbe defendant received and beld tbe execution; and that be conducted with it fairly, reasonably, and agreeably to tbe orders of tbe plaintiff; and that tbe loss, wbicb happened by tbe depreciation of tbe continental bills of credit, was occasioned by tbe plaintiff’s neglect to receive them.

So judgment was for tbe defendant.  