Kidder v. Barker

The opinion of the court was delivered by Redfield, J. Upon the count for suffering the debtor to depart from the prison, when the copy left with the jailer showed only a writ of summons, we think there is not sufficient ground for a recovery. The plaintiff must see, that he makes a legal commitment. For this purpose it is indispensable, that a copy of the process, upon which the commitment is made, be left with the jailer. The jailer is not bound to look beyond his copy. If that shows a defective process, he may well presume, that the process itself is defective; and he is not liable for an escape for not detaining the debtor, upon what appears to be a void process. Upon the count for not returning the execution, there being no proof, that either the body or property of the debtor was within the reach of the officer, and the case showing that in fact they were not, we are certainly not prepared to say, that the case comes within the principle of Turner v. Lowry, 2 Aik. 72, — where the return of non est inventus was indispensable to charge the bail, — there being no bail in the present case. Nor do we see that the case is fairly [457] comparable to that of Hall et al. v. Brooks, 8 Vt. 485, — where the officer might have executed the writ, but took upon himself to control the precept, and where the court held, as they have in all similar cases, that the officer thereby made the debt his own and became liable for its full amount. These decisions seem to have proceeded upon the ground of a voluntary refusal to execute final process; and in all such cases it may be just, to hold that the officer makes the debt his own. But in the present case, the return being merely formal, we do not think, that the omission to make it in time should subject the officer to the imputation of having wantonly assumed to control the final process of the court, and thereby charged himself with the debt. But, the process being returnable, and not having been fully executed, so as to supersede the necessity of returning it, — as when the debtor is committed, or the debt collected, — and as it might be of some importance to the creditor to be informed, by the return of the officer, of the state of his demand, at the earliest time at which, by law, he could require it, and as the right to delay one day involves the right to delay indefinitely, we have concluded, that the better rule is, that the officer should be liable for nominal damages, for not returning the execution, and for so much more as have been suffered. Judgment reversed.