Horace Hall & Co. v. Brooks

The opinion of the court was delivered by Redfield, J. In this action, the county court gave judgment for the whole amount of debt and cost in the original execution, ■notwithstanding the defendant offered evidence to show that the debtor was, at the time of the neglect, wholly unable to respond the amount, or any part of it. If the testimony was relevant, then the judgment is erroneous. At common law, no such action, as the present, could be sustained against an officer, the only remedy being the process of the rule of court and amercement for contempt. But the action is expressly recognized by our statute, but nothing is there to be found in relation to the rule of damages. But the defendant claims the right of giving the evidence offered, and thus reducing the damages below the amount of the execution, as a universal common law right, in reference to all actions of this character. In actions for escape on mesne process, and for refusal to serve mesne process, as the debt cannot be transferred to the officer, by the judgment, the rule of damages claimed by defendant in this case has been adopted. But where an officer has final process put into his hands, which he refuses or neglects to receive, it has always been held, that he thereby made the debt his own, and was liable in damages to the full amount of the debt. The question is not new. It was so held by the court in the case of Turner vs. Lowry, 2 Aik. 72, when judgment was rendered for plaintiff to recover the full amount of this execution. In the case of Buckminster vs. Fuller, decided in Caledonia county, March Term 1832, the point now in judgment, was fully considered and decided, as we now hold. There'is a case within the recollection of some members of the court, decided in Franklin county, in which it was held, that the sheriff wasjiable in an action for escape from' the liberties^ of the [488] jail for the full amount of the debt and could not give in evidenca either the poverty of the debtor or the solvency of the bondsman at the time of executing the same, they having subsequently become wholly insolvent. These decisions and the long and uniform practice in alf our courts of allowing full damage, we think, give to the rule the force of law. That the case is, in some respects, similar to that of an action for escape on mesne process is not to be denied. But that is not the same case. If the debtor has once been in custody, the object of imprisonment has been in some measure answered. Imprisonment for debt is only intended to operate to induce a surrender of the debtor’s property. If it fails in producing that effect, in the first instance, it will usually always fail. But the case is quite different, when the officer chooses to take the law into his own hands and peremptorily refuses, or what is the same, wholly neglects to serve the process of the court, to which he is bound, and which the creditor has a perfect right to insist upon, we cannot feel that in this view the rule of law here recognized is a hard one. A contrary rule would certainly be very much at variance with sound policy, in as much as it must lead directly to encourage in officers, neglect of duty and tampering with debtors and their friends, whiclfiis not within the legitimate scope of their duties. Judgment is affirmed.