* Thomas Harrington versus Thomas W. Ward.
A sheriff is answerable for his negligence in the service of process in a civil action to none but the plaintiff or defendant in such action.
Case against the defendant, sheriff of the county of Worcester, for the neglect of one of his deputies. The declaration contained three counts, on the last of which alone the question in the action arose. That count alleges, in substance, that the plaintiff, with one Jonathan Nelson, one Daniel Nelson, and one Ashael Allen, made their joint and several note to one Daniel Waldo, for 750 dollars, payable in 57 days, and dated the 18th of December, 1808; that the note being unpaid, Waldo sued out a writ of attachment thereon, against all the said promisors, and delivered the same to one William Eaton, a deputy of the defendant, who thereupon attached sundry chattels, the property of the said Jonathan Nelson, of the value of 800 dollars, of which he made due return; that Waldo recovered judgment in the said suit for the sum of 523 dollars 67 cents damage, and 6 dollars 25 cents costs of suit; upon which he sued out his execution, and delivered the same to one Shepard Pratt, another of the deputies of the defendant, to be by him executed and returned; that Pratt, within 30 days from the rendition of the judgment, demanded of Eaton the goods he had attached as aforesaid, that they might be by him taken to satisfy the judgment aforesaid, but Eaton neglected and refused to deliver the same; that the note aforesaid, whereon the said judgment was rendered, was made and given for the sole and proper debt of the said Jonathan Nelson, and no part thereof for the debt of the plaintiff or the other promisors, or either of them, of which the said Eaton was in no wise ignorant, having been notified thereof by the said Waldo at the time of the attachment aforesaid; and that by means of the said neglect and refusal of the said Eaton, and for want of other property of the said Jonathan Nelson, to satisfy the said execution, the plaintiff had been compelled to pay, and had paid, to the said Pratt one moiety of the said judgment, &c., amounting, in the whole, to 269 * dollars 98 cents, and has wholly lost the same; — to the damage, &.c.
A verdict on this count having been rendered for the plaintiff, the defendant moved that judgment thereon might be arrested; because the said count, and the facts therein set forth, were insufficient in law to entitle the plaintiff to have and maintain an action against the defendant, and that no judgment could by law be en tered up against him for any of the causes alleged in that count.
*228
Blake,
in support of the motion to arrest the judgment, contended that the conduct of Eaton, as charged in the declaration, and found by the verdict, was no such misfeasance as the sheriff is liable to an action for, even to Waldo, the judgment creditor. Had Waldo offered the execution to Eaton, and he had neglected to execute it by selling the chattels he had attached, he would have been answerable. But the creditor had no right thus to select another deputy, and order the chattels delivered over to him. Eaton was answerable to Nelson, as well as to Waldo, for his fidelity concerning those chattels which were in his custody as an officfer of the law.
But if the sheriff were answerable to the judgment creditor, in such a case as this, still it is insisted that the present plaintiff derived no cause of action from the facts alleged. He was not the creditor of Nelson. There was no privity between him and Eaton. Waldo made no complaint, nor does the judgment debtor, whose goods were attached. Here had been no assignment of the judgment and execution to Harrington. In short, he appears to have been wholly a stranger to the business, except that, as a debtor by the execution, he was liable to pay the whole amount of it, instead of the moiety, which it appears that he has paid. The action is altogether without precedent, which is a strong argument against ts being supported.
Bigelow and Lincoln for the plaintiff.
It is acknowledged that no case precisely like the present is to be found in the books. But there is no principle more established * than that for every injury the party suffering shall have a remedy, if can agent, any tion that such action was never brought before. “ It is a maxim of the common law,” said this Court, in the case of Riddle vs. The Proprietors of the Locks and Canals on Merrimack River,
“ that a man specially injured by the breach of duty in another shall have his remedy by action.” That Eaton was guilty of a breach of duty in this case, cannot be seriously denied ; and it is equally true that the plaintiff was specially injured thereby. If Waldo had suffered, no one will doubt that he had his remedy. But Eaton, knowing, as he did, the whole relation of the parties, was bound so to conduct as that none should suffer by his negligence or misconduct. He knew that the chattels were attached rather to secure an indemnity to the sureties of Nelson, than for the benefit of the creditor, whose demand was abundantly secured before. Harrington was a *229party to the record, and there was a sufficient privity between him and the officer.
If this was a breach of duty in Eaton, the deputy, the defendant is liable. The case is the same, as it relates to the sheriff, as if he had been personally guilty of the wrong; and if there be no remedy against him upon these facts, then it is always in the power of a sheriff, or his deputy, to defeat an honest and useful arrangement made between a creditor and the sureties of his principal debtor.