
    Cæsar versus Samuel Bradford, Esq.
    An action may be maintained against an officer, for falsely returning, on an original writ, that he had arrested the body of the defendant and had taken bail, until barred by the general statute of limitations; and the plaintiff in such action is not bound to show a demand of the bail-bond within a year from the judgment.! t
    1 See Simmons vs. Bradford, 15 Maes. Rep. 82.
    t [By Rev. Stat. of Massachusetts, c. 15, § 78 such action must be commenced within four years from the time when it accrued ■ Ed.]
    [Such bond must be returned and filed with the writ, in Massachusetts. See Rev. Slat. c. 91, § 4.—Ed.]
    This was an action of the case against the defendant, as sheriff of this county, for the malfeasance of Bradish Billings, one of his deputies, in one count, for falsely returning, upon an original writ in favor of the plaintiff against one Nathaniel Ingraham, that he had arrested Ingraham's body and had taken bail; and, in another count, for not returning the execution which issued upon the judgment recovered by the. plaintiff in the same suit. The writ was dated June 20th, 1814.
    It was in evidence at the trial, which was had upon the general issue, before Parker, C. J., at the last November term, in this county, that Billings returned, upon the original writ, that he had arrested the body of Ingraham and taken bail; but that, in fact, he had not taken bail, but, having arrested him, suffered him to go at large, upon his promise that he would execute a bail-bond with sufficient sureties. Gcesar entered his action against Ingraham, and, at the October term, 1812, of the Supreme Judicial Court in Middlesex, recovered judgment for $ 309.50 damage and costs. Execution issued thereon in January, 1813, and was delivered to Billings, who made a return of non est inventus on the same, bearing date the sixth of April, 1813 ; but it was not in fact returned into the clerk’s office until a long time after the return day thereof. No application *was made for the bail-bond until more than a year had elapsed after the judgment ; and Ingraham had not been within the Commonwealth since, so that he could be taken execution.
    The defendant’s counsel insisted, that, upon the first count, the actioi could not be maintained, because the bail-bond was not demanded, nor the suit commenced, until more than a year had elapsed after the judgment; and he stated, that funds bad been lodged with him, as attorney of Ingraham, to satisfy the judgment; which having kept, until he supposed the right of action against the sheriff to be gone, he had paid over. He also contended, that, upon the second count, only nominal damages could be recovered.
    The judge who sat in the trial instructed the jury, that, as the return upon the writ was false in fact, the right of action remained after a year from the judgment ; although the bail would not have been answerable beyond that time. For it might well be, that the creditor knew there was no bond to be obtained, if demanded, and that he relied upon his right of action against the sheriff. And this was especially to be presumed, if the jury were satisfied that the execution was not duly returned into the clerk’s office. Because, not finding the execution there, the creditor would, of course, rely upon his remedy against the officer ; having no right of action against the bail, without a return of the officer upon the execution. A verdict being returned for the plaintiff in conformity with the judge’s direction, the defendant moved for a new trial on account of that direction.
    
      Jlylwin, for the defendant.
    A false return does not of itself give a right of action, unless actual damage be proved to have been incurred in consequence of such return.  But here, no damage would have been sustained, had due diligence been used by the plaintiff. The amount of his judgment was placed in the attorney’s hands, and kept by him for more than a year, ready to be paid over on. request to the sheriff or his deputy. But the plaintiff lay by, until all parties supposed the sheriff discharged, and *then the money was returned. Nominal damages only should have been given.
    Upon the second count the plaintiff has shown no better title to damages. The execution was returned in season for him to have demanded the bail-bond and sued his scire facias. All bis misfortune has arisen from his own negligence. The defendant ought not to be charged in damages, further than the plaintiff’s loss is actually owing to Billings's misconduct. 
    
    
      Ward, for the plaintiff.
    
      
      
        Boles vs Lassels, Cro. Eliz. 852.
    
    
      
      
        Weld vs. Bartlett, 11 Mass. Rep. 473.— Waterhouse vs. Waite, 10 Mass. Rep. 207
      
    
   Parker, C. J.,

delivered the opinion of the Court. The question made in this case is, whether the plaintiff has not lost his right of action against the sheriff for the misfeasance of his deputy, because he did not make a demand of the bail-bond within a year after judgment against the principal. The position is attempted to be supported by analogy to the action against bail, which is limited to a year after judgment against the principal; and it is said no damage has been sustained, because, had there been a bail-bond, the plaintiff, by his negligence, would have lost his remedy upon it.

But this is taking for granted what may never have happened ; for it may be presumed, that the plaintiff knew that no bail had been taken, notwithstanding the return of the officer; and, with such knowledge, to have made the demand would have been but an idle ceremony. The wrong done was in making the false return ; and there is no limitation affecting an action for that wrong, but the general statute of limitations in personal actions. The limitation for a scire facias against bail, is a personal privilege to the bail: which cannot be transferred to an officer, who has neglected his duty.

Judgment according to the verdict.  