
    * Thomas O. Selfridge versus Arthur Lithgow
    A judgment is recovered against a bankrupt (who has obtained his certificate) for a debt due before the bankruptcy, and execution is delivered to the sheriff, who neglects to serve it In an action against tire sheriff for such neglect, the creditor shall recover only nominal damages.
    This was an action brought against the defendant, as sheriff of the county of Kennebeck, for neglecting to serve and return an execution delivered to him against one Joseph Burton.
    
    
      Bj a case agreed in this action, it appeared that Burton, in August, 1803, became a bankrupt, and obtained his certificate. The judgment against him was rendered (upon default, and upon a cause of action arising before the bankruptcy) April, 1804, and in May following the execution was delivered to the defendant, who omitted to serve it, and did not return it until after the commencement of this action, when he returned it unsatisfied, and further certified the bankruptcy of Burton, and the certificate granted to him thereupon. If was also agreed that, when the plaintiff commenced this action, he also knew of Burton’s bankruptcy, and that this was the reason of the defendant’s omitting to serve the execution.
    
      For the plaintiff,
    
    it was contended that no such discretion as this claimed by the defendant belonged to a sheriff. He was bound to execute the precept of a court having jurisdiction of the subject-matter, and had no authority to judge of the legal effects of the bankruptcy of the debtor.
    If Burton would avail himself of the benefit of his certificate of discharge, it' was necessary for him to have come in and pleaded it. His suffering judgment to go by default implies that he had made a new promise after the bankruptcy, which he was competent to do, and such promise to pay a preexisting debt would bind. The Court could not know of the bankruptcy but by his pleading it in bar.
    
      For the defendant,
    
    it was said that if he had taken the body of a certificated bankrupt, the commissioners would immediately have discharged him, and the defendant would have been liable to an action by the bankrupt.
    By his certificate the bankrupt was discharged from all debts which he owed at the time he became bankrupt, and which were, or might have been, proved under the commission. The [ * 375 ] * debt being thus discharged', the execution was void, and a mere nullity. The officer was not bound to serve it, neither had he a right by law to serve it. Where a court has no jurisdiction of a cause of action, the officer is not bound to serve its process. And he must have authority to exercise his discretion, which, however, he does at his peril. 
    
    
      Everett for the plaintiff.
    
      W. Sullivan for the defendant.
    
      
      
        Bac. Abr. title Sheriff, M.
      
    
   By the Court.

Let judgment be entered in favor of the plaintiff for one cent damage, and a quarter of a cent as costs. 
      
       Quære—as there was no proof of the circumstances of the debtor since hi* bankruptcy, ought not the judgment to have been for the debt and costs ?
     