Grafton Bank v. White

Gilchrist, J.* This action was commenced to recover damages of the defendant, occasioned by the alleged neglect of his deputy, Stephenson, to serve and return an execution committed to him. One question arising is, whether to such a count maybe joined another, declaring upon the neglect of the defendant himself to make service and return of the same execution. The case of Skinner v. White, 9 N. H. Rep. 204, is an authority for the joinder of a count for the sheriff’s neglect wi0th another for the neglect of a deputy, and that evidence of the neglect of the deputy is relevant to an issue raised upon the alleged neglect of the sheriff. The cause of action is the default of the defendant, through one of his deputies, to make the required service of the writ. This appears to us not to be abandoned by the substitution of Merrill for Stephenson, as the deputy, through whose negligence the default of the defendant was incurred. The amendment was, therefore, one which might well have been allowed. The interest which deputies themselves have in suits of this nature renders it proper that the terms of the amendment should be adjusted with some reference to the position of Stephenson in the action heretofore. But that is a matter proper for the discretion of the court of common pleas. The measure of damages in these cases is the actual damage sustained by the plaintiff. Richards v. Gilmore, 11 N. H. Rep. 493. The judgment debtor was poor, and there is no evidence from which a jury could presume that a seizure of property was practicable, or that an arrest would have been of any avail. The sum, therefore, [392] which the parties have arranged, seems to be the only proper one, which, upon the face of the evidence, can be recovered. The damage resulting from the omission to return the ■ execution is merely nominal. Runlet v. Bell, 5 N. H. Rep. 433; Webster v. Quimby, 8 id. 382. There is no evidence of a demand ■ having been made for the money collected, or the value of the watch. The statute of limitations does' not, therefore, apply. Moody v. Mahurin, 4 N. H. Rep. 296. Judgment for the plaintiff for $19.74. Footnotes [*] Woods, J., did not sit.