
    Platt vs. Sherry.
    
      Case lies against a constable for not levying an execution of the goods and chatties of a defendant when directed so to do, and instead thereof committing the defendant to prison; the remedy is not by action of debt alone. A constable may summon a jury to try the right to property, before making his return.
    A plaintiff in an execution is not bound to tender a ¡bond of indemnity until after a jury have passed upon the question of property.
    A constable is entitled to double costs when sued for acts done or omitted by him in his official capacity, and the plaintiff is nonsuited.
    Error from the Clinton common pleas. Platt sued Sherry in a justice’s court, in an action on the case', for malfeasance as a constable, and the cause was removed by appeal into the. common pleas. An execution on a judgment in favor of Platt against one Cochran, was put into Sherry’s hands, with directions to levy it on the property of Cochran ; he did levy on some property, and after doing so, informed an agent of the plaintiff that he was afraid that the property did not belong to Cochran, but did not ask for any indemnity ; subsequently, without selling the property, he committed Cochran to prison on the execution, who in due time obtained his discharge. On these facts the plaintiff rested, and the defendant moved for a nonsuit', because, 1st. It had not been shewn that any property of Cochran had been pointed out to the constable ; 2d. That no bond of indemnity had been tendered to him ; and 3d. That the statute having given remedy by action of debt in cases of this kind, case would not lie. The court sustained the last objection. The plaintiff then offered to prove that Cochran had sufficient property from which the constable might have satisfied the execution ; but the court being of opinion that case could not be maintained, refused to receive the evidence, nonsuited the plaintiff, and awarded double costs to the defendant. The plaintiff sued out a writ of error.
    
      W. G. Watson, for plaintiff in error.
    
      J. D. Woodward, for defendant in error.
   By the Court,

Nelson, J.

The common pleas, in nonsuiting the plaintiff, were probably governed by the case of Pierce v. Sheldon, 13 Johns. R. 191, which was an action on the case, for neglecting to serve or return the execution within the limited time, and the judgment was reversed for a misconception of the action. No reason or authority is given for this decision, except that the statute provided a remedy expressly “ by action of debt.” 1 R. L. 395. Laws of 1824, p. 289, § 17. In this case the action is founded upon the express malfeasance of the officer in making a levy upon property sufficient to satisfy the execution, and then voluntarily relinquishing it for the body. An action on the case is the appropriate remedy at common law. 1 Chitty, 140. See Precedents, vol. 2, 365,6. Rogers v. Brewster, 5 Johns. R. 125. Bartlet v. Crozier, 15 id. 250. It is a very clear, if the statute had not given the action of debt against the constable for a violation of his duty party injured would have resorted to the common law action upon the case ;■ for there would be a lamentable defect jus^ce ™ most cases of misfeasance of these officers, if re-

dress could not be obtained independent of statutory regulations. For maliciously and unreasonably executing process, with intent to oppress, for keeping property in an unsafe place upon execution, and exposing it to destruction, and in numerous other instances, the only remedy is at common law. Jenner v. Jolif, 9 Johns. R. 385. We can discover no reason why the principle is not strictly applicable to this case, that if a statute gives a remedy in the affirmative, without a negative express or implied, (which is this statute,) for a matter that is actionable at common law, the party may sue at common law, as well as upon the statute. 6 Bac. Abr. 376, 7, g. Bonafous v. Walker, 2 T. R. 129, 32. Almy v. Harris, 5 J ohns. R. 175. Though the statute gives an action of debt against the sheriff for an escape, 1 R. L. 425, it has frequently been decided that the remedy at common law is not thereby impaired. Rawson v. Dole, 2 Johns. R. 455; Bonafous v. Walker, 2 T. R. 126; Homan v. Liswell, 6 Cowen, 659, was an action on the case, against a constable, for not returning an execution, and this objection seems not to have been thought of.

There is no force in the position that constables are creatures of the statute, unknown to the commom law, and that their duties, and remedies for a violation of them are prescribed by the statute, for their office is a very ancient one, 1 Bac. Abr. 683, and existed at common law ; 2 Hawk. ch. 10, § 33 ; though their duties were originally confined to the execution of criminal process ; and the cases above cited shew that most of the remedies against them as civil officers must be, if at all, at common law.

The plaintiff in the execution was not bound to tender a bond of indemnity to the constable without a request, conceding that a constable cannot summon a jury to try the right of property, upon reasonable doubt as to title; but we see no objection, either in principle or practice, to the constable’s exercising that power. The same reasons which extend this protection to the sheriff are equally applicable to him ; and in in the case of Townsend v. Phillips, 10 Johns. R. 98, this power was exercised by a constable. The settled rule in this state is, that the plaintiff is not bound to tender a bond of indemnity until after the jury have passed upon the question of property, and the officer acts at his peril in making a return, nulla bonat unless in pursuance of the inquisition. Center v. Patterson, 8 Cowen, 65.

Had the plaintiff been properly nonsuited, the defendant would have been entitled to double costs, 8 Cowen, 416 ; but the court erred in nonsuiting the plaintiff, and the judgment must be reversed.

Judgment reversed.  