Prosser v. Coots

Graves, C. J. Error is alleged by both parties, but we think none of the objections have any force. The plaintiff’ sued by attachment one Mrs. .Meyers, a non-resident, and the defendant being sheriff, the writ was left at his office for service. A deputy levied it on real estate, and then prematurely returned it. As a consequence of this error, the judgment which was taken in this case was reversed in this Court. 40 Mich. 644. The plaintiff thereupon brought this action to recover against the sheriff for the false return, and he was allowed [264] to take judgment for certain expenses in tbe attachment case, with interest on the amount. It did not appear to the jury that the plaintiff had any agency in causing the inopportune return of the writ. The error lay with the deputy, and the fault of the deputy was the fault of the sheriff, his principal, and the first count of the declaration is sufficient after judgment to support the recovery. The defect was discovered in season by the plaintiff to enable him to escape any greater loss than the amount awarded him. It was his course to stop on seeing the error, unless sustained by the sheriff in going on. But he went forward on his own views and without any assent from, the ■sheriff, and in so doing he proceeded, as the law regards it, in bis own wrong, and the sheriff is not responsible for the consequences thus caused. This view covers all material points, and discussion of details is needless. The judgment is affirmed, but neither party will recover costs of this Court against the other, except that the cost of printing the’record must be borne equally. The other Justices concurred.