Watkinson v. Town of Bennington , 12 Vt. 404 ( 1839 )

After argument, the opinion- of the court was delivered by

Royce, J.

— A question may perhaps arise hereafter, whether the rule of damages, in cases of this description, should always be the same against the town, as against the constable. The statute has rendered the town liable to “make-good” to any party such damages as he may sustain from the constable’s default. These expressions would seem to imply actual damages, and nothing more. It has just been decided in the county of Rutland, (Bramble v. Poultney, 11 Vt. R. 208,) that a recovery against the constable is not evidence of the liability of the town. And, as the two remedies are both direct, and independant of each other, it may well deserve consideration whether any rule of damages against the constable, which is founded rather in general policy than in strict justice to the creditor, should be applied as against the town. The present occasion does not require us to pass upon the question, since we consider, that, upon the facts disclosed in this case, the balance of the execution would not form a necessary measure of damages as against the constable.

The rule, that an officer subjects himself in this form of action for the whole amount of an execution, if he suffers the same to run out in his hands, is not in strict analogy with the principles of common law. Actions of this class are supposed to be founded upon the equity of the plaintiff’s case. And hence it was expressly admitted in Bonafous v. Walker, 2 T. R. 126, that whenever the form of action is case, whether for defaults on mesne or final process, the question, as to damages, is necessarily open, and the jury are at liberty to give what they shall think the justice of the case requires. But the prevailing rule must be regarded as settled, in the case of neglect to return an execution, though the common law remedy is resorted to. This rule, however, is not applicable to every case, even, of such neglect. It has its proper application to those cases where nothing has been done under the writ, which operates as an immediate and necescessary benefit to the creditor. Such were the cases of Turner v. Lowry, 2 Aik. 75, and Hall v. Brooks, 8 Vt. R. 485. The case must be the same where the whole or a part of the money has been raised, but not paid over to the creditor. But, so far as the doings of the officer, seasonably had under the writ,'have at once enured to the creditor’s benefit, he must be content with that benefit, though the writ may happen not to be returned in time. Were it fully executed, there is nothing, but the statutary enactment, which would seem to render a return of the process at all necessary. Originally, final process was not ranked among returnable process, nor did it need to be returned, unless the officer was ruled or ordered to make return. But, our statute having made it returnable, the officer must be guilty of default if he fails to return it. In this case, the writ was fully executed, by raising money for part and committing the debtor for the residue. To the portion thus satisfied by commitment, the remarks just made are applicable. The commitment was legal, and operated effectually for the plaintiff’s benefit, whether the execution was, or was not, afterwards, returned. The present, then, is not a case for the application of the stern rule for which the plaintiff contends. He was entitled to show any actual or probable loss, from the manner of executing the writ, or from the long neglect of the constable to return it. And it does not appear that he was deprived of any such showing; as the decision merely was, that the commitment was admissible, in evidence, in mitigation of damages.

Judgment of county court affirmed.