
    Ledyard v. Jones.
    
      Liability of sheriff for non-retu/rn of execution. — Measu/re of damages.
    In an action against a sheriff for the non-return of an execution, he is primA facie liable for its amount, without averment or proof of special damages.
    He may show, in mitigation of damages, that the defendant had no property, out of which the debt could have been levied ; hut not that the judgment is still collectible.
    Ledyard v. Jones, 4 Sandf. 67, affirmed; Stevens v. Rowe, 3 Den. 327, overruled.
    Appeal from the general term of the Superior Court of the city of New York, where a motion for a new trial, made upon a bill of exceptions, had been denied, and judgment entered upon a verdict in favor of the plaintiff. (Reported below, 4 Sandf. 67.)
    This was an action of trespass on the case, brought in the supreme court, against the defendant, as sheriff of New York, for not levying an execution in favor of the plaintiff against one Jacob Acker, for the sum of $500.49; for not returning the same, within sixty days; and for making a false return to the said writ. The defendant pleaded the general issue.
    On the trial, before Strong, J., it appeared in evidence, that on the 11th June 1844, the plaintiff recovered a judgment against Jacob Acker, a former sheriff, for $588.58; that on the 24th October 1844, a fi. fa. was issued thereon, and delivered to the defendant, the present sheriff, commanding him to levy the sum of $504.49; which, on the 20th May 1845, he returned “ superseded by writ of error.”
    On the 5th April preceding, a writ of error, with an order staying proceedings upon the execution, was granted by one of the circuit judges, and notice thereof given to the attorney of the plaintiff. The sureties in the bond upon the writ of error having been excepted to, and having failed to justify within the proper time, the writ of error was superseded by an order of the judge, granted on the 15th May, and notice of the supersedeas was served on the attorney for the plaintiff in error. Prior to this, however, and on the 10th May, notice was served on the attorney for the defendant in error (the plaintiff in this suit), that a new bond had been filed, and that the sureties would justify on the 17th. In consequence of the filing of this new bond, an order was granted staying the proceedings; and on the 4th June, the supreme court vacated the supersedeas, restored the writ of error, and allowed the sufficiency of the justification of the sureties.
    The attorney for the plaintiff called on the sheriff a number of times subsequently to the return-day of the execution, and the latter said, he had done nothing with the execution, and had. not attempted to do anything. It was admitted, that Acker, the defendant in .the execution, had sufficient real and personal estate out of which the execution might have been levied, and out of which it might still be collected.
    At the close of the testimony, the court denied a motion for a nonsuit, and instructed the jury, that, it being shown that there was property upon which the defendant might have levied, he was liable for not levying; and that he was also liable for not making a return, at the expiration of the sixty days from the delivery of the execution; that the plaintiff, therefore, had proved a right to recover, and the only question was as to the amount of her damages: that she was entitled to the damages she had really sustained, and in fixing the amount, the jury were entitled to give her liberal damages; “ that if the defendant had performed his duty, the plaintiff would have had the money at the expiration of the sixty days fixed in the execution, while now she has not the money, but competent securities, and the jury are bound to assume that she would ultimately receive the money. The plaintiff’s 1 >ss is the difference between having the money in hand at the return-day of the execution, and receiving it with interest at the termination of the litigation; the jury must give the real damages, but as the suit is against a public officer, there is no objection to your taking a liberal view of them.” The defendant’s counsel excepted to the charge, insisting that the plaintiff was only entitled fco nominal damages.
    *There was a verdict for the plaintiff for # $200, and a motion having been made for a new *- . trial, upon a bill of exceptions, the superior court, to which the cause had been transferred, denied the motion, and rendered judgment in favor of the plaintiff upon the verdict, holding that the plaintiff might have recovered against the defendant the- full amount of the moneys 'to be raised upon the execution, and that although the charge was incorrect upon that point, yet that, as it was more favorable to the defendant than it ought to have been, he had no right to complain. The defendant, thereupon, took this appeal.
    
      Blunt, for the appellant.
    
      Bowdoin, for the respondent.
   Watson, J.

There is but a single point in this case upon which the court is called upon to decide, and that is, as to the amount of damages the respondent is entitled to recover in this action. The verdict finds that the appellant did not levy the execution placed in his hands; that he made a false return upon it; that he did not return it at the expiration of sixty days; and it was admitted on the trial, that the defendant in the execution had both real and personal property out of which the execution might have been satisfied. The amount of the execution was $500.49, and the jury found a verdict of $200.

This question has been repeatedly passed upon in the supreme court, and, I regret, that the decisions are conflicting. In Patterson v. Westervelt (17 Wend. 543), where it was shown, that the judgment-debtor had abundant means to satisfy the execution, the court held, that the plaintiff sustained damages to the whole amount of the judgment; and that having been kept out of his money, by the wrongful act of the officer, in not executing and returning the process according to its command, the * 552 1 as Prove(l by the judgment, constituted *the -* true measure of damages. In the case of The Bank of Rome v. Curtiss (1 Hill 275), the court held, that the sheriff was primé fade liable for the whole amount due, and that it was no answer to say, that the defend ants in the fi. fa. were still able to pay. This doctrine was again laid down by the court, in the case of Pardee v. Robertson (6 Hill 550), together with another upon which the appellant has made a point, and that is, that the respondent might recover the full amount of the judgment, without averring special damages in his declaration. All these cases, as well as the case cited of Weld v. Bartlet (10 Mass. 474), lay it down with this qualification, that the debt is primé fade the true measure of damages, the sheriff being at liberty to mitigate the amount by showing affirmatively that the whole sum could not have been collected, if due diligence had been exercised in executing the process.

In the case of Stevens v. Rowe (3 Denio 327), the court held an entirely different doctrine. They held, that the plaintiff could not show, that the judgment-debtor had real estate out of which the fi.fa. might have been satisfied, unless expressly averred in the declaration, and also, that the sheriff might mitigate the amount, not simply by showing his inability to collect the money? but by proof that the debt was still safe and collectible. I confess, I am unable to see the justice of the rule laid down in the case of Stevens v. Mom, and if it is good law, the statute which gives the plaintiff a right to recover damages against a sheriff who neglects to execute process delivered to him, is a mere nullity. It, in truth, affords him no remedy whatever, and allows an unfaithful and defaulting officer to take advantage of his own wrong, a privilege that the law accords to no other person. According to this construction, if the officer is sued for a neglect of duty, he can say, the defendant in the execution had no property out of which he could collect the money, and that, it is conceded, is a good defence, or he can say, he has property out of which you can still collect it, and, therefore, nothing but nominal damages can be recovered against me, which can only be the damages the plaintiff has sustained by the delay in collecting the money, simply the interest *upon the - ^ interest of the money due, when it ought to *- have been collected. To such a doctrine I can never yield my assent, for a plaintiff, if this is tolerated, might never be able to collect his debt. The second execution issued upon the same judgment would admit of the same defence, and so on, as often as they might be issued, provided the judgment-debtor did not in the meantime get rid of his property. The rule laid down by the court, in the cases first cited, is by far the most salutary, and to my mind, a just and fair exposition of the statute giving a remedy against defaulting officers. The statute says that the plaintiff shall recover “for the damages sustained by him,” without specifying any particular amount.

The case of Kellogg v. Manro (9 Johns 300), which is cited in Bank of Rome v. Curtiss, held, that the plaintiff was entitled to recover more than nominal damages, for the court say, “primd facie, he is entitled to recover his whole debt, which is presumed to be lost by the escape and in the case in 10 Mass. 474, Parker, Justice, held a similar doctrine, “ that where an officer had neglected to do his duty, so that the effect of the judgment appears to be lost, the judgment in the suit so rendered ineffectual is primd facie evidence of the measure of injury which the plaintiff has sustained; but it may be met by evidence of the total inability of the debtor to pay.” Both of these cases, after laying down the rule that the debt of the plaintiff shall be assumed to be lost, where the officer neglects his duty, allow him but one defence, and that a good excuse for not doing it, to wit, that the defendant had no property out of which he could have made the money, had he endeavored ever so faithfully to do his duty. Neither allows him to take advantage of his own wrong, by saying, true, I did not do as I was commanded by the execution, which if I had done the plaintiff would have got his money, but there is property enough of the judgment-debtor out of which the plaintiff can get it, if any officer will obey the command of the process put into his hands, but still the plaintiff can collect only nominal damages against me, and not even that, unless he has alleged special damages in his declaration. Those cases place the officer’s liability upon * 554 1 *^^- They assume that the debt -* is lost to the plaintiff, if the officer having an execution against the debtor, who has abundant means to pay, does not collect it; and they will not allow him to set up a neglect of duty on his part, which very neglect was the reason why the debt was not collected, as a defence. The law always, presumes that he has done his duty, until the contrary is shown, and it should never allow a wilful neglect of it, as an excuse for liability to the party injured thereby.

If, as these cases hold, it is no answer for him, that the plaintiff has property sufficient to satisfy the execution, then it is unnecessary for the plaintiff to allege it in the declaration, as special damages, for when a primó facie case is made out, by showing his neglect of duty, he can only defend himself by showing the inability of the judgment-debtor to pay. If he attempts to show this, then clearly the plaintiff would have a right to rebut it, by showing that the defendant in the execution had property sufficient to pay it.

If these views are sound, how are they applicable to this case ? The plaintiff here has not recovered as much as the true rule of damages in this case would have allowed him; he has recovered but $200, instead of $500. But the appellant insists that there was error in the justice’s saying to the jury, “that in an action against a public officer, they should give liberal damages.” Suppose this, as an abstract principle of law, is erroneous ? It does not, therefore, follow, that the respondent has been injured thereby, or that, on that account, this court will reverse the judgment. A verdict will not be set aside, even on a bill of exceptions, for the misdirection of the judge as to the measure of damages, when, from the generality of the charge, the jury might have received an erroneous impression, if it be manifest, from the finding of the jury, that injustice has not been done. The judgment of the supreme court should be affirmed.

Judgment affirmed.

Gardiner and Morse, JJ., dissented. 
      
       Dolson v. Saxton, 11 Hun 57
     