
    Charles Paine versus George Ulmer.
    An action against a sheriff for the default of his deputy, in not returning an execution, survives to the administrator of the judgment creditor.
    This was an action of the case against the defendant, as sheriff of the county of Hancock, for the default of his deputy, in not returning an execution, which the plaintiff had committed to him.
    Before the last November term, the plaintiff had died, and Charles Cushing, jun. Esq., to whom administration of his estate had been committed, moved at that term to be admitted to prosecute the action. He was accordingly admitted, de bene esse, by Parker, J., who satin the trials of that term. A verdict was found for the plaintiff, subject to the opinion of the Court on the right of the administrator to prosecute the suit.
    * The cause stood over to this term ; and now, Aylwin, [ * 318 ] of counsel for the plaintiff, contended that this action survived to the administrator, by the rules which had hitherto been applied in the exposition of the statute of 4 Edio. 3, c. 7, de bonis asportatis. It has been repeatedly decided, that all wrongs done to the estate of the testator, come within the equity of this statute, and that for them an executor may bring his action. Thus an action of debt lies by an executor against a jailer for an escape on execution in the testator’s lifetime;  though it has been doubted whether it lay foi; an escape of mesne process.  It has also been adjudged, that an executor might bring a writ of Ravishment of ward, Ejectione firma, and (fiare impedit. 
      
    
    If these cases are to be classed among those which are considered as wrongs to the estate of the testator or intestate, there can be no doubt that the case at bar falls within the same class ; as it appears that the original judgment on which the execution issued, was for a debt due to the intestaté, which has been lost by the non-feasance of the deputy of the defendant.
    The statute de bonis asportatis has always received a liberal construction in favor of executors, according to Lord Chief Justice Holt, m the case of Williams vs. Grey, 
       which case virtually decides that this action survives.
    & K. Williams for the defendant.
    The case of Williams vs. 
      Grey decides only that, where goods were taken by virtue of a fieri facias to the amount of £100, and the officer returned that he had levied goods but to half that value, an action survived to the executor for this false return. And this case was evidently within the equity of the statute de bonis asportatis. For the goods, when taken by the officer, became quasi the property of the creditor.
    It is not contended, that debt or case may not be sustained by an executor for an escape committed in the lifetime of the creditor.
    For the body of a debtor, while in execution, is in the [ * 319 ] nature of a pledge for the payment of * the debt. To deprive the creditor of this pledge, by suffering an escape, is doing an injury to his estate, which an equitable construction of the statute may well remedy.
    In the case at bar, neither the property of the debtor nor his body were taken on the execution ; nor is there any allegation in the declaration, that either could have been taken, or that the officer assumed, and took upon himself to serve the execution. No authorities have been produced to the Court, and it may be hence inferred that none can be found, where an action for a mere nonfeasance has been held to survive to the executor.
    The administrator in this case is not without his remedy. The judgment against the original debtor is still in full force, and an action thereon will restore the plaintiff to his right, and furnish him with the most honest remedy.
    
      
      
        Platt’s case, Plowd. 34. — Fitz. N. B. 121, a.
      
    
    
      
      
        Latch. 167, Lemason vs Dixon —1 Roll. Abr. Tit. Executor. P. pl. 2.--Poph 189.
    
    
      
      
        Vent. 30.
    
    
      
       1 L. Raym. 41.
    
   The Court,

without hesitation, determined that the action in this case survived, admitted the administrator to prosecute, and ordered judgment to be entered for him on the verdict.  