Downer v. Bowen

The opinion of the court was delivered by Bennett, J. — At the time the deputy sheriff received the execution, he gave his receipt for it, and, in the receipt, he promises to collect and account for the execution according to law. We see no reason, notwithstanding the receipt, why the defendant may not give in evidence the subsisting agreement between the plaintiff and the deputy. This is an action against the sheriff for a neglect of duty. If the contract w,as still subsisting and was applicable to this execution, most clearly there was no neglect in the deputy in not committing the debtor, unless he had had the special direction of the creditor so to do. The execution ran out in the hands of the officer, by the license of the creditor, and the sheriff must be at liberty to show it. The sheriff only stands responsible for such neglect of official duty of his deputy as the law imposes, and it cannot be enlarged by any special promise of the deputy. The creditor, at all times, may control the execution, and if, in this case, it was not to be levied until further orders, it is an ample defence to this action ; and the admission of this evidence contravenes no rule of law. The deputy, in fact, had no legal right to execute the process, by a commitment of the body of the debtor, without special instructions. This would not have been “ collecting the execution according to law,” but would have been the ground of an action, had the creditor sustained damage thereby. It seems, also, that the court below admitted evidence, that, not only the judgment debtor in this execution, but in all the executions mentioned in the deputy’s receipt, and which were delivered at the same time, were poor and insolvent, as tending to make out the defence ; and the question is not as to the amount of this testimony, but whether it [455] was admissible. The ground of all presumptions is the necessary or usual connection between facts and circumstances, the knowledge of which connection results from our experience in life, and reflection. If a judgment debtor is poor and insolvent, there is little prospect that a commitment of the body will eventuate in a satisfaction of the debt, and those of us, who are acquainted with this business, well know that creditors are, usually, cautious about pressing a poor debtor into jail, who would, at once, be entitled to his discharge. Such debts would, ordinarily, be rendered still more desperate by a commitment. If the judgment debtors, in the execution specified in the plaintiff’s declaration and all the others, were poor, it does furnish a reason why, probably, the creditor might not wish them committed, and does render it probable that all the executions might have been delivered under the instructions and agreement contended for by the defendant. Every man may be presumed, in his transactions of business, to be actuated by interest. This evidence, however, is slight in its character, and probably had but little weight with the triers in finding the facts; but we cannot say that it is altogether inadmissible. Judgment of the county court affirmed.