Goodrich v. Starr

[230] The opinion of the court was delivered by Redfield, J. After the decision of the cases of Brooks v. Hall, 8 Vt. 485, Buckminster v. Fuller, cited in Ib., Turner v. Lowry, 2 Aik. 72, Watkinson v. Bennington, 12 Vt. 404, and Bank of Whitehall v. Pettes, 13 Vt. 395, it could hardly be expected, that this case should be subjected to any different rule of damages from that adopted in those cases. There is no possible difference between this case and those, except that here the sheriff, in addition to wilfully neglecting to serve final process, made a false return. This last circumstance could hardly be received in extenuation of the original neglect, without inviting falsehood and fraud. The rule having been established by repeated decisions, it is hardly necessary to go into the reasons, upon which it is founded. The rule of damages is certainly different from that, which obtains in England in the action on the case for neglects of officers, whether voluntary, or not; but not different from that which obtains there in the action of debt, under the statutes of 13 Edw. 1, c. 11, (usually called the statute of Westminster 2,) and that of 1 Rich. 2, c. 12. And although we have not adopted, in our practice, that form of action, I know no reason, why we may not apply the same rule of damages to that class of cases, although in a different form of action. It has been a rule, well understood and universally recognized in this State for more than thirty years, that an officer, who held final process against the body of a debtor, upon whom he might have served it, but who neglected to do so and “ let it run out on his hands,” or, having once had an opportunity to arrest the debtor, neglected to do so, and the debtor afterwards absconded, was fixed with the debt. 9 Pet. Abr. 93, and note. 5 Mod. 202. 2 Str. 901. Judgment affirmed.