Jenner v. Joliffe , 9 Johns. 381 ( 1812 )

Per Curiam.

The plaintiff’s right to recover must depend upon the count for the defendant’s negligence and carelessness in keeping the plaintiff’s timber under the attachment. The proofs in the case are a complete answer to the counts in trover; for it appears that the seizure of the timber was a legal seizure, under a writ of attachment, issued by the highest court of judicature of the province ; and it is to be presumed that it was issued conform-ably to the laws of the province: besides, the settlement which actually took place, is a recognition of the validity of the attachment.

In every case where an officer is intrusted by the common law, 'or by statute, an action lies against him for a neglect of the duty of his office. (1 Salk. 18.) So for every fraud or neglect in the execution of his office. (Lat. 187.) If an officer, having authority to attach a man’s goods, keep them in an unsafe place, or expose them to destruction, he acts contrary to the duty of his office, and will be liable in case they are destroyed. And where the plaintiff, upon a process of attachment, causes an officer so to conduct himself, as to misbehave in the execution of his office, and produce the loss or destruction of goods in his custody, the party has his election either to sue the principal or the officer. In applying this principle to the case before us, we are furnished with a very loose statement of facts. On what point the jury passed, it is impossible to say from the case. There is some evidence that the plaintiff requested the raft to be moved to a place of greater security, and that the defendant, by his interference, prevented it If the defendant meant to set aside the verdict on this ground, w$ ought to have been furnished with the judge’s opinion, and a more detailed statement. Making the necessary intendments in favour of every verdict, we cannot say there was not sufficient evidence to justify the finding. The settlement was for the timber actually delivered. The case of Brown v. M'Kinally (1 Esp. Cas. 279.) does not apply, because the misfeasance of the defendant would mot have been a subject of inquiry upon any issue to be joined in that suit. The objection that Jenner owned but half the raft, and waS} therefore, entitled to recover for a moiety only of the injury, is not supported by the case. He was in possession of the raft, an<^ pdma facie, to be deemed the owner. As to the excessiveness of the verdict, the contract price is not the criterion, and there are no data from which we can calculate that the damages are excessive.

Motion denied.^(a)

(a) See S. C. 6 Johns. Rep. 9.