
    Bodenhamer vs. Bodenhamer.
    1. An action of debt lies against an officer to enforce his legal liability when he has collected money by process or levied on property sufficient to satisfy the execution without a legal discharge of his levy or legal response to the execution.
    2. The several forms of action and the rules which govern them cannot be preserved and enforced in suits before justices of the peace. The warrant is only a notification to the party to appear. The justice must decide the case on its merits.
    Bodenhamer sued Bodenhamer by warrant before a justice of the peace for the county of Maury, in which the defendant was summoned to answer the plaintiff of a “plea of debt under one hundred dollars.”
    The case was tried before Herndon, J. and a judgment rendered for the plaintiff for $45.
    The defendant appealed to the circuit court, and on the trial before Judge Dillahunty and a jury at the January term, 1845, it appeared that the defendant was a constable in the county of Maury; .that an execution in favor of the plaintiff against a third person was placed in his hands for collection, calling for the sum of $42. There was some doubt cast upon the solvency of the execution debtor, but it was proved by the plaintiff that defendant stated that he. levied the execution on a sufficiency of property to satisfy it.
    The presiding . Judge charged the jury that if defendant had been guilty of negligence only, debt would not lie; but that if he had collected the money or levied the execution on a sufficiency of property to satisfy it, the defendant in the execution was discharged and debt would lie.
    A verdict and judgment were rendered against the defendant for the sum of $40. The defendant appealed.
    
      M. Frierson-, for the plaintiff in error.
    The court erred in charging the jury “that if the defendant had levied a valid execution upon the personal property of defendant, Pillow, sufficient to pay the debt, he would be liable for the debt, and might be sued in an action of debt for the same, whether he had sold the property levied on or not. At common law an action of debt would not lie against an officer for mere neglect of duty, and the party injured by such neglect, could only maintain an action on the case against a sheriff who neglected to discharge the duties of his office. 7 Law Lib. 127; 1 Chitty’s PI. 158; 7 Law Lib. 82; Chitty on Contracts, 641; 16 East, 254; 1 Wend. 534; 14 John. 255. But for an escape upon final process against the person, the plaintiff was given an action of debt against the sheriff by virtue of 1st Rich. 11c. 12; 1st Am.. C. 6, 52; 7 Law Lib. 142,143,144; 2 John. Rep. 454.
    But if the sheriff has levied the money due upon an execution, or any part thereof, the plaintiff may recover the same in an action of debt, or in assumpsit for money had and received. 2 Bacon Abr. 379; 2 Starkie’s Evidence, 746., 7 Law Library 292. But a mere seizure without a sale will not charge the sheriff in these actions; 16 E. 274 — so the various acts of our legislature have given summary remedies against sheriffs and other collecting officers, but none of them give an action of debt, and the party injured by the neglect of an officer must resort to his action on the case or to his statutory remedy for relief. N.. and C. 294, 296, 299, 300.
    The court was evidently misled by 2 Bacon’s Abr. 720 from which the charge was copied, and if the author intended to convey the idea, that a mere levy upon personal property sufficient to pay the debt, would render the sheriff liable for the debt, recoverable by an action of debt, he is wholly unsupported by authority, and the very authorities cited by Bacon refutes his own position, for they only decide that under such circumstances he would be responsible for the “amount of the debt;” but they do not even intimate that an action of debt would lie, and so far from it, that the very cases referred to, were actions on the case. Hobart, 206; 2 Mod. 214; 4 Mod. 404; 2 Starkie’s Ey. 746; 3 Starkie’s Rep. 163.
    And the reason why an action of debt will not lie in such cases, is, that if the sheriff fails to sell the property levied on, the plaintiff can only recover the value of the property at the time it ought to have been sold, and this sounding in damages must be ascertained by the verdict of a jury. 2 Hay. 346; 10 Mass. 470; 2 Starkie’s Ev. 740; note (1) 7 Law Lib. 199.
    IV. S. Brown, for plaintiff in error.
    It is insisted by counsel for plaintiff in error that the court below erred in charging the jury “that if the defendant had levied a valid execution upon the personal property of defendant, Pillow, sufficient to pay the debt, he would be liable for the debt, and might be sued in an action of debt for the same whether he had sold the property levied on or not.’’ This is almost a literal extract from the law as laid down in 2 Bacon, 720.
    But outside of authority the charge of the court is unquestionably correct upon principle. The levy of an execution upon the personal property sufficient to satisfy it, has always been held to be a satisfaction of the debt, and a discharge of the defendant.
    The property passes into the hands of the levying officer and he becomes responsible to the plaintiff in the execution for the value of the property, or so much of it as will satisfy his debt. If he fails or refuses to sell, it is his own folly. By making the levy he discharges the defendant in the execution from all further liability to the plaintiff. The rights of the plaintiff are thereby removed from the defendant’s shoulders and transferred to the officer’s, and the officer stands in the shoes of the defendant.
    The law makes it the duty of the officer to sell the property, and if he had sold it and received the money it is not denied but that the action of debt would lie, and shall he now be heard to plead his own wrong in bar of the plaintiff’s action? It is certainly true in such case the plaintiff might support an action on the case for negligence, or non-feasance; but it is equally true, that he may waive the tort and sue for his debt.
   Reese, J.

delivered the opinion of the court.

The defendant sued the plaintiff in error by warrant or summons before a justice of the peace, “in a plea,” as the summons says, “of debt under one hundred dollars.” The justice gave judgment for the plaintiff below, for the sum of forty-five dollars. The defendant appealed to the Circuit Court, where a verdict was rendered against him for about the same amount.

The defendant below was an officer, and had in his hands an execution in favor of the plaintiff, which he levied upon property of the execution debtor, sufficient to satisfy the execution. It did not appear whether he had collected the money or not. It seems that the chief controversy in the Circuit Court, as here, related to the form' of action, and to whether debt would lie.

The court charged the jury, that the officer could not be held liable on the ground of negligence or malfeasance in that form of action; but that if he had collected the money, or levied the execution upon property sufficient to satisfy the execution, as that would discharge the execution debtor, the defendant would become liable for the amount of the execution, and the action of debt might be maintained to enforce such legal liability.

We are of opinion, that this part of the charge is correct, namely: that the collection of the money or a levy upon personal property sufficient to satisfy the execution, will maintain the action of debt against the officer; but we are further of opinion, that as this case presented itself at the trial in the Circuit Court, and was for an amount below fifty dollars, and within the jurisdiction of the magistrate, if there had been doubt whether the action of debt would lie, it was not necessary to hold that that was the form of the action from any thing said in the warrant or summons. The several forms of action and the rules which govern them cannot be enforced and preserved in suits before justices. So that we have held at this term and heretofore that in such cases the statutes of limitation will be applied to the evidence and substance of the case, and not to any words indicating a form of action which the magistrate may choose to use in Ms summons or warrant. These words “of plea of debt,” must be moulded to apply to accounts, assumpsit, to damages for the non-compliance with a contract, or legal duty, &c. If held to the true meaning of technical words used by them, these domestic tribunals would involve the affairs of society in more than the confusion and difficulty necessarily incident to the administration of the laws by persons being so imperfectly acquainted with them.

Let the judgment be affirmed.  