The opinion of the Court was delivered by
The allegation in the writ is, that Gould, a deputy of Adams, then Sheriff of this county, neglected to serve the writ against Buss and attach certain chairs, as he was directed. It is true, that he undertook to serve the writ and to attach them, in the capacity of constable, but the writ was directed, not to any constable, but to the Sheriff of the county and his deputies. Gould, therefore, undertook to do what he was neither directed nor authorized to do. And when the execution which issued on the judgment in the action, was delivered to Gould, he neglected to serve it, or secure any property of Buss, and returned the same in no part satisfied. These facts having been displayed on the trial, the jury found a verdict for the original plaintiff and have assessed his damages. The only question reserved is, whether the plaintiff, Jewett, by proceeding to judgment in the action against Buss, must be considered as having waived all objections against the irregularity of the service and the misconduct of Gould, and con*428sented to adopt, and sanction the service and attachment of the chairs, though made by him as constable, and not as deputy-sheriff. When a creditor brings an action against a Sheriff for not making a service of a writ committed to him and securing property by attachment, or by arresting the body of the debt- or, when he might have done either; by means of which neglect the creditor has been damaged ; he must prove that he had a good cause of action against the debtor, or person sued, , in order to maintain his action against the Sheriff; and, from the nature and necessity of the case, he must prove it by parol. But in those cases where the writ' has been served, but a loss has been sustained by the mode or an irregularity of proceeding, or by any subsequent neglect or malfeazance, the plaintiff should proceed in his cause and obtain judgment, and thus, by record,,- verify his cause of action and entitle himself to execution. In ordinary cases, therefore, where there has been a service. of the writ, the conduct of the plaintiff in obtaining judgment furnishes no legal proof of a waiver or abandonment of claim against the Sheriff for his neglect or misconduct. It is, however, contended in the present case, that though the writ was not directed to a constable, and that, though he therefore had no right to serve it as such, yet if Jewett was willing to accept it as a good service, and proceed to judgment, with no objection made by Buss, he might do so, and in existing circumstances, must be considered as acting on this principle ; — as waiving all objections to the service, and all claims against the Sheriff. To rebut this conclusion, the counsel for Jewett, as stated in the report, testified, that the fact of the service of the writ by Gould as constable, escaped his attention till after judgment was entered. There is no proof that the plaintiff, Jewett, knew it before that time ; nor is there any probability of it; inasmuch as the care of the action against Buss was confided to Mr. Tenney. How, then, can it be presumed that Jewett or his counsel waived objections against irregularities and malfeazance on the part of Gould, of which neither had knowledge — and claims against the Sheriff, of which neither was conscious. Such a presumption would be a presumption of an effect with*429out a cause; it would be establishing a conclusion, without the existence of any premises. On the whole, we do not perceive any solid ground on which the motion for a new trial can be sustained.
Judgment on the verdict.