Bissell v. Edwards

5 Day 94

• Court: Supreme Court of Connecticut
• Decided: June 15, 1811
• Status: Published

Opinion

Swift, J.

The plaintiff in this action, claims, that the defendant delivered to him, lie being a deputy sheriff, an execution in favour of Hitchcock, Wolcott and Co. againsf Moses Tiviss, which he levied on certain estate, sold it, anti paid the money to the defendant ; that the estate on which the execution was levied belonged to Chcnczcr Tiviss, who had sinee, by suit, recovered the value of it from the plain tiff.

The court charged the jury, that if they found that the property on which the execution was levied, belonged to Ebcneser Tiviss, and not to Moses, and that the plaintiff had paid the money to the defendant, the defendant was liable to refund it.

It does not appear, that the defendant had any interest in the execution, or, that he was attorney or agent to Hitchcock, Wolcott and Co. The effect, then, of the charge, is to decide, that where the neighbour of a creditor, takes an execution, and delivers it to an officer to collect, and receives the money to transmit to the creditor, in case the property-levied upon did not belong to the debtor, the officer may recover back the money from him. Admitting, that the officer would be entitled to a remedy in such case, it is perfectly clear, that the defendant would not be liable to him, for the sole act of delivering the execution and receiving the money. But, it is equally clear, that the creditor himself would not be liable to this action.

When fra officer receives an execution to levy and collect, the law lias pointed out his duty, and ascertained his responsibility. If, on demand of the money of the debtor, when he can be found, or at his place of abode, he refuses to satisfy the execution, the officer is hound to levy on his personal estate, if it can be found, if not, then on lib body-, unless the creditor directs a levy on land. If neither person nor estate can be found, he must return the execution, within tlie life of it, with an indorsement of non cst inventus, The creditor is not obliged to give any special directions. The officer must look to the execution for his rule of conduct : He must levy at his peril, and is liable in case of mistake. This is a part of the responsibility of the officer, and without such responsibility, creditors would have no -i.'nmly for the faithful service of their executions. If the officer neglects to levy on the estate of the debtor, when he has the power to do it, ho becomes responsible to the creditor for such neglect. If he levies on estate which does not belong to the debtor, though by mistake, and causes it to be sold, by which the execution is discharged, he becomes re-responsible for such misconduct, in the same manner as for a neglect of duty in not levying an execution. He cannot excuse himself, by alleging, that the estate did not belong to the debtor : for this is the very misconduct that creates Ms liability.

If, tinder such circumstances, he can maintain an action against the creditor, he will he enabled to obtain an indemnity for his own neglect. The creditor would be subjected to a suit, when money had been voluntarily paid to him, and under such circumstances, that he could not know, that he was not entitled to retain it. He would not only be liable to refund the money received, but would, also, be subjected to the expence of obtaining a new executioh, to collect a debt, discharged by the blunder of the officer who is seeking a remedy against him for it.

This would be a very extraordinary change of responsibility. The creditor would be liable for mistakes, instead of the officer who committed them.

If such were the rule, creditors would run great hazard in delivering executions to officers -but officers would have very little inducement to fidelity, when they could have such an easy remedy for their own mistakes and blunders.

I am, therefore, of opinion, that a new trial ought to he granted.

All the other Judges severally concurred in this opinion.

New trial to he granted,