Parker v. Pattee

The opinion of the court was delivered by Richardson, C. J. It is a well settled general rule, that a mere nonfeasance shall not make an officer a trespasser ab initio. 2 Saund, 61, c & d. But in some cases, an officer may, by mere nonfeasance, forfeit the protection of the process under which he acts, and become liable to be treated as a trespasser, although his ⅜conduct was in the first instance lawful. Thus if he neglect to return mesne process, he cannot be permitted to use it as a justification of any act he may have done under it. 1 Chitty, 186; 3 N. H. Rep. 229. This principle, which may be considered as an exception to the general rule, was adopted in England in very early times, and may have been originally founded on sound reasons, and have been salutary and convenient in practice. But while the ordinary mode of returning writs and adjusting actions shall remain among us what it always has been, a rigid application of this principle would often be exceedingly unjust and inconvenient. According to the common course of business, the sheriff, when he has served a writ, delivers it to the attorney of the plaintiff, and if the action be settled by the parties before entry, the writ remains with the attorney, and is never returned. Such being the general practice, it is very manifest, that it would be unjust to permit the sheriff to be treated as a trespasser where he had made an arrest of the body, or taken the goods, of the debtor, merely because he could not show the writ regularly re [532] turned. And we believe the practice has been, when a suit has been brought against the sheriff in such a case, to permit him to file the writ under which he acted in the clerk’s office for his protection. It seems, therefore, that the rule by which a sheriff forfeits the protection of process by not returning it, can rarely have any practical application in our system of jurisprudence, and if the question whether such a rule should be adopted, were now for the first time presented, it is not unlikely that it might be answered in the negative. For if the sheriff neglect to return process, he may be compelled by action to pay all damages sustained by such neglect, and this seems to be a sufficient penalty. We must, however, take the law as we find it. But with these views on the subject, we shall not be disposed to extend the rule to cases where it does not appear to have been heretofore applied. We have met with no case in which it has ever been held, that an officer may become a trespasser, ab initio, merely by an omission or mistake in his return. When various articles are attached, the officer may inadvertently omit to mention a particular article, or may by mistake give a wrong name to an article. Some articles may be released by the creditor at the request of the debtor, and be on this account omitted in the return. We see no reason, why, in any of these cases, the officer should be treated as a trespasser. If he unlawfully convert the goods to his own use, or suffer them to be lost, wasted, or injured by bis negligence, he makes 'himself liable to the extent of the injury. But it seems not yet to have been decided, that an officer is liable in any shape for a mere defect in his return. Com. Dig. “Return” F 3 ; Cro. Eliz. 512. We are, on the whole, of opinion, that there must be Judgment on the verdict.