Wheeler v. Willard

Wilde J. delivered the opinion of the Court. This is an action of trespass on the case against the sheriff of the county of Worcester, for neglect of duty, both by him, and by one o. his deputies, in not paying over money collected on the plaintiffs’ execution against one Fay. The defendant demurs to the declaration, and we are to decide whether any one of the several counts be in law sufficient to maintain the action. The plaintiffs’ counsel rely principally upon the first count, in which the plaintiffs’ judgment against Fay is set out, with an averment that execution thereon was delivered to the defendant, and that he undertook to execute the same according to law, and ought to have satisfied it out of the moneys of Fay arising from the sale of his property by the defendant, which, the plaintiffs aver, was attached on their original writ, and that the proceeds of sale were more than sufficient to satisfy their judgment, after paying off all previous attachments. But the first count does not show how, or by what authority, this sale was made. It is not averred that the defendant acted virtute officii, and such an averment we hold to be material to the maintenance of the action, and the omission of it is not to be supplied by intendment. Com. Dig. Pleader, C 22; Bac. Abr. Pleas and Pleading, A 1, B 1; Drowne v. Stimpson, 2 Mass. R. 444. The declaration must set forth all the material grounds of action fully and with certainty, and if on the facts stated two intendments may be made, it shall be taken most strongly against the plaintiff. The pleader in this case relied undoubtedly on the St. 1804, c. 83, § 6, which direpts in what manner the surplus money arising on sales by sheriffs shall be applied, after satisfying the executions on which the property was taken and sold ; but the allegations in the first count are insufficient to bring the case within the purview of that statute. To bring [490] the case within the statute, it should have been averred that the sale was made officially ; and also that the plaintiffs’ execution was delivered to the defendant before he had paid over the surplus money to the judgment debtor. Both these averments are necessary, and the omission of them is fatal. Soper v. Harvard College, 1 Pick. 177; Salem v. Andover, 3 Mass. R. 436; Wrentham v. Attleborough, 5 Mass. R. 434. The other two counts are clearly deficient, and the plaintiffs' counsel have not attempted to support them. In each of these latter counts, it is averred that the plaintiffs’ execution was delivered to Francis B. Fay, one of the defendant’s deputies, and that he satisfied the same in part by the sale of personal property, and demanded of Fisher, another of the defendant’s deputies, the half of the proceeds of the sale of certain equities of redemption, which had been sold on an execution in favor of one Whipple, and had been simultaneously attached by him and the plaintiffs, and that the said Fisher not regarding the notice and demand, the plaintiffs have wholly lost the benefit of their attachment. The negligence is charged against Fisher ; but there is no averment that he had any surplus money in his hands at the time of the demand, or that the plaintiffs’ attachment had ever been returned into court; or that he had been so informed by Francis B. Fay. The demand was not for any surplus in his hands, but for one half of the amount of sale, to which the plaintiffs were not entitled, as it would much exceed the amount due on their execution. And there is no averment that the plaintiffs’ execution was delivered to Fisher. These are material defects, and the whole declaration mus be adjudged insufficient.